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BLACK'S 

LAW DICTIONARY 


Definitions of the Terms and Phrases of 
American and English Jurisprudence, 
Ancient and Modern 


By 

HENRY CAMPBELL BLACK, M. A. 

Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors, 
Bankruptcy, Mortgages, Constitutional Law, Interpretation 
of Laws, Rescission and Cancellation of Contracts, Etc. 


REVISED FOURTH EDITION 

BY 

THE PUBLISHER'S EDITORIAL STAFF 


ST. PAUL, MINN. 
WEST PUBLISHING CO. 
1968 



COPYRIGHT © 1891, 1910, 1933, 1951, 1957 WEST PUBLISHING COMPANY 


COPYRIGHT 0 1968 
By 

WEST PUBLISHING CO. 


Black's Law Dictionary 4th Ed. Rev. 
6-1971 



PREFACE 

REVISED FOURTH EDITION 


THE sustained and growing popularity of BLACK'S LAW DICTION- 
ARY since its appearance more than seventy five years ago is a strik- 
iig tribute to the scholarship and learning of Henry Campbell Black, 
and to the essential soundness of the plan adopted by him for the 
compilation of a legal lexicon. 

In accordance with the original plan of this work, consistently 
adhered to in all subsequent editions, the law student, confronted in 
his casebooks with reports from the Year Books, or with extracts 
from Glanvil, Bracton, Littleton, or Coke, will find in this dictionary 
an unusually complete collection of definitions of terms used in old 
English, European, and feudal law. The student will also find in this 
volume, on page 1795, a useful Table of British Regnal Years, listing 
the sovereigns of England for more than 900 years, together with the 
date of accession to the throne, and the length of reign. 

BLACK'S LAW DICTIONARY has proven its value through the 
years to the busy practitioner, judge and law student who requires 
quick and convenient access to the meanings of legal terms and phras- 
es found in statutes or judicial opinions, as well as to the special legal 
meanings of standard English words — meanings which frequently can- 
not be found in the ordinary English language dictionaries. 

In the period of more than thirty five years since the publication 
of the Third Edition, the law has undergone substantial changes and 
developments. The vocabulary of the law has shown corresponding 
change and growth. A word, in the often quoted dictum of Mr. Justice 
Holmes, is "the skin of a living thought," and the words of statutes 
and judicial opinions reflect the contemporary thinking of legislators 
and jurists. In order adequately to represent this thinking in the 
fourth edition, a patient examination was made of the thousands of 
opinions handed down by the appellate courts each year. Some revi- 
sions and additions have been included in this Revised Fourth Edi- 
tion 


Abbreviations of common words and phrases likely to be en- 
countered by the user are explained in appropriate places throughout 
the main body of the work. A Table of Abbreviations of the titles of 
law reports, textbooks, and other legal literature is contained in the 
back of the volume and a Guide to Pronunciation is included in the 
front of the volume. 

New features in this Revised Fourth Edition include the follow- 
ing: 

Code of Professional Responsibility 

Canons of Judicial Ethics 

An Outline of the Minimum Requirements for 

Admission to Legal Practice in the United States 

III 



PREFACE— REVISED FOURTH EDITION 


In order that BLACK'S LAW DICTIONARY should continue to 
be a handy one-volume work of ready reference, the enlarged contents 
of the Fourth Edition necessitated an improved typographical style. 
The type for the Fourth Edition was accordingly completely reset and 
arranged in wider columns, in a more attractive and readable manner. 

The Publisher has drawn freely on its wide experience to make 
the present edition of BLACK'S LAW DICTIONARY superior to any 
of the earlier editions. It is confidently believed that this edition, both 
in content and format, sets new standards of excellence among law 
dictionaries. 


THE PUBLISHER 

ST. PAUL, MINN. 

June, 1968 



CONTENTS 


Page 

Preface — Revised Fourth Edition III 

Front Matter 

Guide to Pronunciation --VII 

Code of Professional Responsibility 

Canons of Judicial Ethics lxix 

Minimum Requirements for Admission to Legal Practice 

in the United States lxxv 

Text of Definitions --1 

Back Matter 

Table of British Regnal Years 1795 

Abbreviations 1797 


Black's Law Dictionary 4th Ed. Rev. 



GUIDE TO PRONUNCIATION 


A NOTE ON PRONUNCIATION OF LATIN 

One of the difficulties in pronouncing legal terms is that one com- 
monly hears both the English system and the Roman system of pro- 
nouncing Latin words. Before 1900, the English pronunciation of 
Latin had developed for legal, medical, and other scientific terms. 
During the second half of the nineteenth century, scholars estab- 
lished that what is now known as the Roman pronunciation was used 
between 50 B.C. and 50 A.D. Nearly all schools in English-speaking 
countries adopted the Roman system of pronunciation. But by and 
large, the English pronunciation has persisted among lawyers, physi- 
cians, and scientists. 

The main difference between the Roman and the English pro- 
nunciation of Latin is in the long sounds of a, e, and i. In English 
these sounds are a, e, and I; in Roman, a is a; e is a; and i is -6. 

The dominant usage among lawyers today is probably the English 
pronunciation, but the Roman system taught in the schools still has 
its influence. Lawyers who studied Latin in school often tend toward 
the Roman, and others often tend toward the English. Yet nearly 
all use both systems, or variations from both systems, to some extent. 

For instance, many lawyers use the English pronunciation, 
rez joD'di-kalia, but many lawyers prefer to say raz 
is neither English nor Roman but a mixture. The Roman ras 
yOrYdl-ca-ta is seldom if ever heard. Probably all lawyers use the 
English ha'be-as corpus or ha'bez corpus; a lawyer who tries to get 
his client out of jail by asking for a writ of ha'bd-as corpus might not 
be understood. Yet the prevailing practice is probably to use the 
Roman d-me'cils cure-I, and not the English d-mi'cils cferi-e. One 
usually hears the mixture, sine qua non; one seldom if ever hears the 
English One qua non. 

The following list is devoted mostly but not altogether to Latin 
words. For those words the English pronunciation is always in first 
place, followed by the Roman or a variation of the Roman when- 
ever it is known to be widely used. The English pronunciation is 
never incorrect in the view of lexicographers, although local or gen- 
eral usage may often cause some lawyers to prefer a pronunciation 
other than the English. As the study of Latin in the schools declines 
still further, the English pronunciation is likely to continue to increase. 

If a uniform system is ever achieved, it is much more likely to 
be the English than the Roman. 


VII 



GUIDE TO PRONUNCIATION 


KEY TO PRONUNCIATION 

Make; chaotic; care; cat; art; across; eat; evade; ebb; runner; 
ice; hit; oak; Obey; Order; hot; food; foot; Unit; unite; Urge; up; 
N (French nasal, as in ensemble, aN saN'bl). 


a fortiori 
a mensa et thoro 
a priori 

ab inconvenienti 

ab initio 

actio in rem 

ad idem 

affiant 

agister 

aleatory 

aliquot 

ambulatory 

amicus curiae 

animo revertendi 

animo testamenti 

appellant 

appellate 

appellee 

assignee 

autre vie, pur 

bona fides 

bona vacantia 

capias 

casus belli 

casus foederis 

casus fortuitus 

casus omissus 

causa causans 

causa mortis 

causa sine qua ncn 

caveat emptor 

certiorari 

cestui que trust 

chose 


a fOr'shi-O'ri 
a men'sd et thO'rel 
a pri-O'ri, pri-O'ri; d' pri-ore 
ab in'cOn-ve'nl-en'ti 
ab 

ak'shi-0 in rem 
ad idem 
a- fir ant 
d-fisler 

a'16-a-tO'ff; -ter-I 
al'i-kwOt 

a-mi'kfis kteri-e; a-me'cUs 
rev'er-tendi 
an'i-mO tesla- men'tl 
a-pel'ant 

ap'e-le' 

poor Ot're ve 
bO'nd lidez 
bO'na 

ka'pi-as; kap'i-as 
ka'sfis bell* 
ka'stis fed'er-is 

for-tfti-tils 

kO'zanz; kou'zd kou'zdnz 
kO'za mortis; kou'zd mOr'tis 
kO'zd sine kwa nOn'; kou'za, sine kwd nOn 
ka've-at emp'tOr; ka've-at 
slir'shi-O-rarl; 
set'i ka trust 
shOz 


VIII 



GUIDE TO PRONUNCIATION 

codicil 

keid'i-sll 

consortium 

kein-sOeshi-um 

contra bonos mores 

kein'tra 1345'nOs mO’rez 

coram nobis 

IcO’ram 

corpus delicti 


corpus juris 

Weptls jo — O’ris 

curtesy 


cy-pres 

se' pra' 

damnum absque injuria ddm'niim abs'kwe in-jeWri-A 

de bene esse 

de Wile es'e 

de facto 

de fdlc'tel 

de jure 

de jOb're 

de novo 

de nO'vO" 

del credere 

del kred'er-e; kre'der-e 

delegatus non potest 

non pa'test delie-ga!re 

delegare 


demesne 

de-man', -men 1 

demur 


demurrer 

de-mileer 

descriptio personae 

de-skrip'shi-6 per-sO'ne 

detinue 


devise 

de-viz' 

devisee 

dev'i-ze'; dO-viz'e' 

domicile 


dominium 


donatio mortis causa 

do-nd'shi-e5 mortis laza; kou'zd 

duces tecum 

da'ses te'ktim 

ejusdem generis 

jen'er-is 

eleemosynary 

el'e-e; 

en ventre sa mere 

aN vaN'te sa' mar' 

enfeoff 

en-fer ; en-fer 

ex gratis 

eks gra'shi-a 

ex parte 

eks pa.ete 

ex post facto 

Rs post fak'tO 

exequatur 

ek'se-kwa'ter 

expressio unius est 

elcs-presh'I-6 ffni-as est eks-klaTi'zhi-ti 

exclusio alterius 

al-Writ-Us 

facias 

fa.'shi-as 

(scire facias) 

sire fa'shi-ds 

(fieri facias) 

fi'e-ri fa'shi-as 

falsa demonstratio 

demon-strd'slii-E* 

feme covert 

fern kilv'ert 

feme sole 

fern sOl 


lx 



GUIDE TO PRONUNCIATION 


ferae naturae 

fe"r"e na-tiVre 

force majeure 

fors' rrazhile 

forma pauperis, in 

in fOr'md pope-ris 

functus officio 

ffingklas 

gratis 

gratis 

gravamen 

grd-vYmen 

habeas corpus 

ha'be-as ki5eptis; ha.'136z 

ignorantia juris 

Ig'nO-rdn'shi-d joVris 

imperium 

imprimatur 

im'pri-mater; -pri- 

in esse 

in es'e 

in extremis 

in eks-tre'mis 

in fieri 

in fire-ri 

in futuro 

in fil-tferO 

in limine 

in limq-ne 

in loco parentis 

in WM pd-ren'tis 

in pays 

in pa 

in pari delicto 

in pa'ri de-lic't6; 

in pari materia 

in pa'ri ma-te'ff-d; O'A 

in personam 

in per-sO'ndm 

in praesenti 

in pre-zen'ti 

in re 

in re 

in rem 

In rem 

in toto 

in bYtO 

in transitu 

in tran'si-til 

indebitatus assumpsit 

in-debl-taVis, In-dal-M.las 

indicia 

indictment 

A-samp'sit, 

In-difment 

inter partes 

inter par'tez 

inter se 

in'ter se' 

inter vivos 

inter 

intra vires 

in'tra vi'rez 

jura in re 

jaYrd in re 

jus 

bus 

jus accrescendi 

jus akTO-sen'di 

jus civile 

jus si-viTe 

jus gentium 

jus jen'shi-um 

jus naturale 

jus narA-rd'le 

jus tertii 

jus 

lathes 

lach'ez 

lessee 

lex domicilii 

Mks 1016ml-sing 



GUIDE TO PRONUNCIATION 


lex fori 
lex loci 
lex situs 
lien 

locus standi 
mala fides 
mandamus 
mare clausum 
mare liberum 
mens rea 
mesne 

mutatis mutandis 

ne exeat republica 

nihil est 

nisi prius 

nolle prosequi 

non est factum 

non obstante veredicto 

non sequitur 

nudum pactum 

nulla bona 

nunc pro tune 

obiter dictum 

obligatio 

obligee 

obligor 

onus probandi 
parens patriae 
pari delicto 
pari passu 
particeps criminis 
pendente lite 
persona non grata 
plene administravit 
poenitentiae, locus 
postea 
praecipe 
prima facie 
profit a prendre 
pro rata 
publici juris 
qua 
quaere 


leks 

Mks 1 6'si 
Mks siVis 
re'en; len 

stdn'di 

maga fi'dez; ma'la 


mare klou'zihn 
mare le'be-ram 


ma re 
mare 
menz 

men; man 

mu-fan'dis 

ne ek's6-dt re-ptabli-ka 

ni'hil -est 

ni'si 

nOl'e prOs'e-kwi; prose-kwi 
non est faletilm 
nOn Ob-stan'te ver'e-dik'tO 
nOn sek'wi-ter 

paklarn 

ba'na 

nfmgk' pra 1 tangk' 

Obri-ter dik'tilm, Ob'i-ter 
613-11-0. 'shi-0 
Ob 

Ob Obqi-gOr 

O'nfis pro-bdn'di 
pa'renz pa'tri-e, patrenz 
pa'ri patri 

pari pas s u; par'i pas' 156 
parli-sops krim'i-nis 
pen-den' to li'te 
per-sO'nd nOn grata 
plO'ne ad-mini-stra'vit 

poste-a 

pres'i-pe; pre'si-pe 
prima fa'shi-e; fa'sh6 
profit a praN'de 
pro rata; rata 
joTh'ris 
kwa; kwa 
kwe'r6 


XI 



GUIDE TO PRONUNCIATION 

quantum meruit 

kwOn'tilm mer'66-It; merll-it 

quantum valebat 

kwOn'tilm va-letat 

quare clausum fregit 

kwa're kleezilm fre'fit, 

quasi 

kwa'si; kwa'si 

qui facit per alium 
facit per se 

kwi fa'sit per d'li-um fd'sit per se 

quia timet 

trmet 

quo warranto 

kwO wl5-ran'tO 

ratio decidendi 

ra'shi-0 des'i-den'di 

rebus sic stantibus 

rebus sik 

renvoi 

ren-voi'; raN'vwd 

res 

rez; raz 

res gestae 

rez jes'te; raz Ks'ti 

res inter alios acta 

rez inter ak'td 

res ipsa loquitur 

rez lOk'wi-ter; raz 

res judicata 

rez jbVdi-kaftd, raz 

restitutio in integrum 

res'ti-ta'shi-0 in in'te-gram 

sans recours 

saN re-koor' 

scienter 

si-e-n'ter 

scire facias 

secus 

si're fd'shi-as 

semble 

sernt'l 

seriatim 

serii-d'tim; 

sine die 

dre 

sine qua non 
solatium 

sine qua non; sine qua non 

stare decisis 

sta're de-srsis, stare 

status quo 

status kwe* 

sub judice 

sub jaii'di-se 

subpoena 

sii-pe'nd 

subpoena duces tecum 

sti-pe'nd; te'kiim 

suggestio falsi 

farsi 

sui generic 

sfei jen'er-is 

sui juris 

sa r i jo-O'ris 

supersedeas 

super-se'de-as 

suppressio yeti 

ve'ri 

tabula rasa 

rd'sa 

ubi jus, ibi remedium 

u'bi jus, i'bl 

ultra vires 

uxor 

ultra vi'rez 

venue 

ven'a 

vis major 

vis major 

volenti non fit injuria 

vel-len'ti am fit in-jdO'fi-a 

XII 



CODE OF PROFESSIONAL RESPONSIBILITY * 

Table of Contents 


Page 

PREAMBLE AND PRELIMINARY STATEMENT 2XVTI 

CANON 1 . A LAWYER SHOULD ASSIST IN MAINTAINING THE 
INTEGRITY AND COMPETENCE OF THE LEGAL PRO- 
FESSION XIX 

Ethical Considerations XIX 

Disciplinary Rules XX 

DR 1-101 Maintaining Integrity and Competence of the Legal 

Profession XX 

DR 1-102 Misconduct XX 

DR 1-103 Disclosure of Information to Authorities XXI 


CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION 
IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL 


AVAILABLE XXI 

Ethical Considerations XXI 

Recognition of Legal Problems XXI 

Selection of a Lawyer: Generally XXIII 

Selection of a Lawyer: Professional Notices and Listings . XXIII 

Financial Ability to Employ Counsel: Generally XXV 

Financial Ability to Employ Counsel: 

Persons Able to Pay Reasonable Fees XXV 

Financial Ability to Employ Counsel: 

Persons Unable to Pay Reasonable Fees XXVII 

Acceptance and Retention of Employment XXVIII 

Disciplinary Rules XXIX 

DR 2-101 Publicity in General XXIX 

DR 2-102 Professional Notices, Letterheads, Offices, and Law 

Lists XXIX 

DR 2- 1 03 Recommendation of Professional Employment XXXII 

DR 2-104 Suggestion of Need of Legal Services XXXIII 

DR 2-105 Limitation of Practice XXXIII 

DR 2-106 Fees for Legal Services XXXIV 

DR 2-107 Division of Fees Among Lawyers XXXIV 

DR 2-108 Agreements Restricting the Practice of a Lawyer XXXV 

DR 2-109 Acceptance of Employment XXXV 

DR 2-110 Withdrawal from Employment XXXV 

CANON 3. A LAWYER SHOULD ASSIST IN PREVENTING THE 

UNAUTHORIZED PRACTICE OF LAW XXXVI 

Ethical Considerations XXXVI 

Disciplinary Rules XXXVIII 

DR 3-101 Aiding Unauthorized Practice of Law XXXVIII 

DR 3-102 Dividing Legal Fees with a Non-Lawyer XXXVIII 

DR 3-103 Forming a Partnership with a Non-Lawyer . . XXXVIII 


* Adopted by the American Bar Association at annual meeting in 
Dallas, Texas, on Aug. 12, 1969. Copyrighted by American Bar 
Association. Published with permission. 

XIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


Page 

CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES 


AND SECRETS OF A CLIENT XXXVIII 

Ethical Considerations XXXVIII 

Disciplinary Rules XXXIX 

DR 4- TO 1 Preservation of Confidences and Secrets of a 

Client XXXIX 


CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PRO- 
FESSIONAL JUDGMENT ON BEHALF OF A CLIENT XLI 


Ethical Considerations XLI 

Interests of a Lawyer That May Affect His Judgment XLI 

Interests of Multiple Clients XLIII 

Desires of Third Persons XLV 

Disciplinary Rules XLVI 

DR 5-101 Refusing Employment When the Interests of the 
Lawyer May Impair His Independent Professional 

Judgment XLVI 

DR 5-102 Withdrawal as Counsel When the Lawyer Becomes 

a Witness XLVI 

DR 5-103 Avoiding Acquisition of Interest in Litigation . XLVI 

DR 5- 1 04 Limiting Business Relations with a Client .... XLVII 

DR 5-105 Refusing to Accept or Continue Employment if the 
Interests of Another Client May Impair the Inde- 
pendent Professional Judgment of the Lawyer .. XLVII 

DR 5-106 Settling Similar Claims of Clients XLVII 

DR 5-107 Avoiding Influence by Others Than the Client XLVII 

CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COM- 
PETENTLY XL, VIII 

Ethical Considerations XLA/III 

Disciplinary Rules XLIX 

DR 6-101 Failing to Act Competently XLIX 

DR 6-102 Limiting Liability to Client XLIX 

CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUS- 
LY WITHIN THE BOUNDS OF THE LAW XL IX 

Ethical Considerations XLIX 

Duty of the Lawyer to a Client LI 

Duty of the Lawyer to the Adversary System of Justice . . LIV 

Disciplinary Rules LVIII 

DR 7-101 Representing a Client Zealously LVIII 

DR 7-102 Representing a Client within the Bounds of the Law LVIII 
DR 7-103 Performing the Duty of Public Prosecutor or Other 

Government Lawyer LIX 

DR 7-104 Communicating with One of Adverse Interest . LIX 

DR 7-105 Threatening Criminal Prosecution LIX 

DR 7-106 Trial Conduct LIX 

DR 7-107 Trial Publicity LX 

DR 7-108 Communication with or Investigation of Jurors LXII 

DR 7-109 Contact with Witnesses LXII 

DR 7-110 Contact with Officials LXII 


XIV 



CODE OF PROFESSIONAL RESPONSIBILITY 


Page 

CANON 8. A LAWYER SHOULD ASSIST IN IMPROVING THE LEGAL 

SYSTEM LXIII 

Ethical Considerations LXIII 

Disciplinary Rules LXIV 

DR 8-101 Action as a Public Official LXIV 

DR 8- 1 02 Statements Concerning Judges and Other Adj udica- 

tory Officers LXV 

CANON 9. A LAWYER SHOULD AVOID EVEN THE APPEARANCE 

OF PROFESSIONAL IMPROPRIETY LXV 

Ethical Considerations LXV 

Disciplinary Rules LXVI 

DR 9-101 Avoiding Even the Appearance of Impropriety LXVI 

DR 9-102 Preserving Identity of Funds and Property of a 

Client LXVI 

DEFINITIONS LXVII 


xv 



CODE OF PROFESSIONAL RESPONSIBILITY 

With amendments to February 24, 1970 


PREAMBLE AND PRELIMINARY 
STATEMENT 

Preamble 1 

The continued existence of a free and democratic 
society depends upon recognition of the concept 
that justice is based upon the rule of law grounded 
in respect for the dignity of the individual and his 
capacity through reason for enlightened self-gov- 
ernment. 1 2 Law so grounded makes justice possi- 
ble, for only through such law does the dignity of 
the individual attain respect and protection. With- 
out it, individual rights become subject to unre- 
strained power, respect for law is destroyed, and 
rational self-government is impossible. 

Lawyers, as guardians of the law, play a vital 
role in the preservation of society. The fulfillment 
of this role requires an understanding by lawyers 
of their relationship with and function in our legal 
system. 3 A consequent obligation of lawyers is 
to maintain the highest standards of ethical con- 
duct. 

In. fulfilling his professional responsibilities, a 
lawyer necessarily assumes various roles that re- 
quire the performance of many difficult tasks. 
Not every situation which he may encounter can 
be foreseen, 4 * but fundamental ethical principles 
are always present to guide him. Within the 
framework of these principles, a lawyer must with 
courage and foresight be able and ready to shape 
the body of the law to the ever-changing relation- 
ships of society. 5 

1 The footnotes are intended merely to enable the reader 
to relate the provisions of this Code to the ABA Canons of 
Professional Ethics adopted in 1908, as amended, the Opin- 
ions of the ABA Committee on Professional Ethics, and a 
limited number of other sources; they are not intended 
to be an annotation of the views taken by the ABA Special 
Committee on Evaluation of Ethical Standards. Footnotes 
citing ABA Canons refer to the ABA Canons of Professional 
Ethics, adopted in 1908, as amended. 

2 Cf. ABA Canons, Preamble. 

3 ”[T]he lawyer stands today in special need of a clear 
understanding of his obligations and of the vital connection 
between those obligations and the role his profession plays 
in society." Professional Responsibility: Report of the 
Joint Conference, 44 A.B.A.J. 1159, 1160 (1958). 

4 "No general statement of the responsibilities of the legal 
profession can encompass all the situations in which the 
lawyer may be placed. Each position held by him makes 
its own peculiar demands. These demands the lawyer must 
clarify for himself in the light of the particular role in 
which he serves." Professional Responsibility: Report of 

the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958). 

Black's Law Dictionary 4th Ed. Rev.-b 


The Code of Professional Responsibility points 
the way to the aspiring and provides standards by 
which to judge the transgressor. Each lawyer 
must find within his own conscience the touch- 
stone against which to test the extent to which his 
actions should rise above minimum standards. 
But in the last analysis it is the desire for the re- 
spect and confidence of the members of his pro- 
fession and of the society which he serves that 
should provide to a lawyer the incentive for the 
highest possible degree of ethical conduct. The 
possible loss of that respect and confidence is the 
ultimate sanction. So long as its practitioners are 
guided by these principles, the law will continue to 
be a noble profession. This is its greatness and its 
strength, which permit of no compromise. 

Preliminary Statement 

In furtherance of the principles stated in the 
Preamble, the American Bar Association has 
promulgated this Code of Professional Responsi- 
bility, consisting of three separate but interrelated 
parts: Canons, Ethical Considerations, and Dis- 
ciplinary Rules. 6 The Code is designed to be 
adopted by appropriate agencies both as an in- 
spirational guide to the members of the profession 
and as a basis for disciplinary action when the 
conduct of a lawyer falls below the required min- 
imum standards stated in the Disciplinary Rules. 

Obviously the Canons, Ethical Considerations, 
and Disciplinary Rules cannot apply to non-law- 
yers; however, they do define the type of ethical 
conduct that the public has a right to expect not 

5 "The law and its institutions change as social condi- 
tions change. They must change if they are to preserve, 
much less advance, the political and social values from 
which they derive their purposes and their life. This is 
true of the most important of legal institutions, the pro- 
fession of law. The profession, too, must change when 
conditions change in order to preserve and advance the 
social values that are its reasons for being." Cheatham, 
Availability of Legal Services: The Responsibility of the 
Individual Lawyer and the Organized Bar, 12 U.C.L.A.L. 
Rev. 438, 440 (1965). 

6 The Supreme Court of Wisconsin adopted a Code of 
Judicial Ethics in 1967. "The code is divided into stand- 
ards and rules, the standards being statements of what 
the general desirable level of conduct should be, the rules 
being particular canons, the violation of which shall sub- 
ject an individual judge to sanctions." In re Promulgation 
of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W. 
2d 873, 874 (1967). 

The portion of the Wisconsin Code of Judicial Ethics 
entitled "Standards" states that "[t]he following stand- 
ards set forth the significant qualities of the ideal judge 

. . Id., 36 Wis.2d at 256, 153 N.W.2d at 875. The 

portion entitled "Rules" states that "[t]he court promul- 
gates the following rules because the requirements of Judi- 


XVII 



CODE OF PROFESSIONAL RESPONSIBILITY 


only of lawyers but also of their non-professional 
employees and associates in all matters pertaining 
to professional employment. A lawyer should 
ultimately be responsible for the conduct of his 
employees and associates in the course of the pro- 
fessional representation of the client. 

The Canons are statements of axiomatic norms, 
expressing in general terms the standards of pro- 
fessional conduct expected of lawyers in their rela- 
tionships with the public, with the legal system, 
and with the legal profession. They embody the 
general concepts from which the Ethical Consid- 
erations and the Disciplinary Rules are derived. 

The Ethical Considerations are aspirational in 
character and represent the objectives toward 
which every member of the profession should 
strive. They constitute a body of principles upon 
which the lawyer can rely for guidance in many 
specific situations. 7 

The Disciplinary Rules, unlike the Ethical Con- 
siderations, are mandatory in character. The Dis- 
ciplinary Rules state the minimum level of con- 
duct below which no lawyer can fall without being 
subject to disciplinary action. Within the frame- 

cial conduct embodied therein are of sufficient gravity to 
warrant sanctions if they are not obeyed . . . ." Id., 
36 Wis.2d at 259, 153 N.W.2d at 876. 

7 "Under the conditions of modern practice it is peculiar- 
ly necessary that the lawyer should understand, not mere- 
ly the established standards of professional conduct, but 
the reasons underlying these standards. Today the lawyer 
plays a changing and increasingly varied role. In many 
developing fields the precise contribution of the legal pro- 
fession is as yet undefined." Professional Responsibility: 
Report of the Joint Conference, 44 A.B.A.J. 1159 (1958). 

"A true sense of professional responsibility must derive 
from an understanding of the reasons that lie back of 
specific restraints, such as those embodied in the Canons. 
The grounds for the lawyer's peculiar obligations are to 
be found in the nature of his calling. The lawyer who 
seeks a clear understanding of his duties will be led to 
reflect on the special services his profession renders to so- 
ciety and the services it might render if its full capacities 
were realized. When the lawyer fully understands the 
nature of his office, he will then discern what restraints 
are necessary to keep that office wholesome and effective." 
Id. 

8 "Disbarment, designed to protect the public, is a punish- 
ment or penalty imposed on the lawyer. . . . He is 
accordingly entitled to procedural due process, which in- 
cludes fair notice of the charge." In re Ruffalo, 390 U.S. 
544, 550, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226 (1968), 
rehearing denied, 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct. 
1833 (1968). 

"A State cannot exclude a person from the practice of 
law or from any other occupation in a manner or for rea- 
sons that contravene the Due Process or Equal Protection 
Clause of the Fourteenth Amendment. ... A State 
can require high standards of qualification . . . but 
any qualification must have a rational connection with the 
applicant's fitness or capacity to practice law." Schware 
v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L.Ed.2d 796, 
801-02, 77 S.Ct. 752, 756 (1957). 

"[A]n accused lawyer may expect that he will not be 
condemned out of a capricious self-righteousness or denied 
the essentials of a fair hearing." Kingsland v. Dorsey, 338 
U. S. 318, 320, 94 L. Ed. 123, 126, 70 S.Ct. 123, 124-25 (1949). 

"The attorney and counsellor being, by the solemn judi- 
cial act of the court, clothed with his office, does not hold 


work of fair trial, 8 the Disciplinary Rules should 
be uniformly applied to all lawyers, 9 regardless of 
the nature of their professional activities. 10 The 
Code makes no attempt to prescribe either dis- 
ciplinary procedures or penalties 1 1 for violation of 
a Disciplinary Rule, 12 nor does it undertake to de- 
fine standards for civil liability of lawyers for 
professional conduct. The severity of judgment 
against one found guilty of violating a Disciplinary 
Rule should be determined by the character of 
the offense and the attendant circumstances. 13 An 
enforcing agency, in applying the Disciplinary 
Rules, may find interpretive guidance in the basic 
principles embodied in the Canons and in the ob- 
jectives reflected in the Ethical Considerations. 

it as a matter of grace and favor. The right which it con- 
fers upon him to appear for suitors, and to argue causes, 
is something more than a mere indulgence, revocable at 
the pleasure of the court, or at the command of the legisla- 
ture. It is a right of which he can only be deprived by 
the judgment of the court, for moral or professional de- 
linquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378- 
79, 18 L. Ed. 366, 370 (1866). 

See generally Comment, Procedural Due Process and 
Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500 
(1963). 

"The canons of professional ethics must be enforced 
by the Courts and must be respected by members of the 
Bar if we are to maintain public confidence in the in- 
tegrity and impartiality of the administration of justice." 
In re Meeker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1966), 
appeal dismissed, 385 U.S. 449 (1967). 

10 See ABA Canon 45. 

"The Canons of this Association govern all its members, 
irrespective of the nature of their practice, and the appli- 
cation of the Canons is not affected by statutes or regula- 
tions governing certain activities of lawyers which may 
prescribe less stringent standards." ABA Comm, on Pro- 
fessional Ethics, OPINIONS, No. 203 (1940) [hereinafter 
each Opinion is cited as "ABA Opinion"]. 

Cf. ABA Opinion 152 (1936). 

1 1 "There is generally no prescribed discipline for any 
particular type of improper conduct. The disciplinary 
measures taken are discretionary with the courts, which 
may disbar, suspend, or merely censure the attorney as 
the nature of the offense and past indicia of character may 
warrant." Note, 43 Cornell L.Q. 489, 495 (1958). 

12 The Code seeks only to specify conduct for which a 
lawyer should be disciplined. Recommendations as to the 
procedures to be used in disciplinary actions and the grav- 
ity of disciplinary measures appropriate for violations of 
the Code are within the jurisdiction of the American Bar 
Association Special Committee on Evaluation of Dis- 
ciplinary Enforcement. 

13 "The severity of the judgment of this court should be 
in proportion to the gravity of the offenses, the moral 
turpitude involved, and the extent that the defendant's acts 
and conduct affect his professional qualifications to prac- 
tice law." Louisiana State Bar Ass'n v. Steiner, 204 La. 
1073, 1092-93, 16 So. 2d 843, 850 (1944) (Higgins, J., con- 
curring in decree). 

"Certainly an erring lawyer who has been disciplined 
and who having paid the penalty has given satisfactory 
evidence of repentance and has been rehabilitated and re- 
stored to his place at the bar by the court which knows 
him best ought not to have what amounts to an order of 
permanent disbarment entered against him by a federal 
court solely on the basis of an earlier criminal record and 
without regard to his subsequent rehabilitation and pres- 
ent good character .... We think, therefore, that 
the district court should reconsider the appellant's appli- 


XVIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


CANON 1 

A Lawyer Should Assist in Maintaining the 
Integrity and Competence of the 
Legal Profession 

ETHICAL CONSIDERATIONS 
EC 1-1 A basic tenet of the professional respon- 
sibility of lawyers is that every person in our so- 
ciety should have ready access to the independent 
professional services of a lawyer of integrity and 
competence. Maintaining the integrity and im- 
proving the competence of the bar to meet the 
highest standards is the ethical responsibility of 
every lawyer. 

EC 1-2 The public should be protected from those 
who are not qualified to be lawyers by reason of 
a deficiency in education 1 or moral standards 2 
or of other relevant factors 3 but who nevertheless 

cation for admission and grant it unless the court finds 
it to be a fact that the appellant is not presently of good 
moral or professional character." In re Dreier, 258 F.2d 
68, 69-70 (3d Cir. 1958). 

1 "[W]e cannot conclude that all educational restrictions 
[on bar admission] are unlawful. We assume that few 
would deny that a grammar school education requirement, 
before taking the bar examination, was reasonable. Or 
that an applicant had to be able to read or write. Once 
we conclude that some restriction is proper, then it becomes 
a matter of degree — the problem of drawing the line. 

"We conclude the fundamental question here is whether 
Rule IV, Section 6 of the Rules Pertaining to Admission 
of Applicants to the State Bar of Arizona is 'arbitrary, 
capricious and unreasonable.' We conclude an educational 
requirement of graduation from an accredited law school 
is not." Hackin v. Lockwood, 361 F.2d 499, 503-04 (9th 
Cir. 1966), cert, denied, 385 U.S. 960, 17 L.Ed.2d 305, 87 
S.Ct. 396 (1966). 

2 "Every state in the United States, as a prerequisite for 
admission to the practice of law, requires that applicants 
possess 'good moral character.' Although the requirement 
is of judicial origin, it is now embodied in legislation in 
most states." Comment, Procedural Due Process and Char- 
acter Hearings for Bar Applicants, 15 Stan.L.Rev. 500 
(1963). 

"Good character in the members of the bar is essential 
to the preservation of the integrity of the courts. The 
duty and power of the court to guard its portals against 
intrusion by men and women who are mentally and morally 
dishonest, unfit because of bad character, evidenced by 
their course of conduct, to participate in the administra- 
tive law, would seem to be unquestioned in the matter of 
preservation of judicial dignity and integrity." In re 
Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966). 

"Fundamentally, the question involved in both situa- 
tions [i.e. admission and disciplinary proceedings] is the 
same — is the applicant for admission or the attorney sought 
to be disciplined a fit and proper person to be permitted 
to practice law, and that usually turns upon whether he 
has committed or is likely to continue to commit acts of 
moral turpitude. At the time of oral argument the at- 
torney for respondent frankly conceded that the test for 
admission and for discipline is and should be the same. 
We agree with this concession." Hallinan v. Comm, of 
Bar Examiners, 65 Cal.2d 447, 453, 421 P.2d 76, 81, 55 Cal. 
Rptr. 228, 233 (1966). 

3 "Proceedings to gain admission to the bar are for the 
purpose of protecting the public and the courts from the 
ministrations of persons unfit to practice the profession. 
Attorneys are officers of the court appointed to assist the 


seek to practice law. To assure the maintenance 
of high moral and educational standards of the 
legal profession, lawyers should affirmatively as- 
sist courts and other appropriate bodies in pro- 
mulgating, enforcing, and improving requirements 
for admission to the bar. 4 In like manner, the bar 
has a positive obligation to aid in the continued 
improvement of all phases of pre-admission and 
post-admission legal education. 

EC 1-3 Before recommending an applicant for 
admission, a lawyer should satisfy himself that 
the applicant is of good moral character. Although 
a lawyer should not become a self-appointed in- 
vestigator or judge of applicants for admission, 
he should report to proper officials all unfavor- 
able information he possesses relating to the 
character or other qualifications of an applicant. 5 

EC 1-4 The integrity of the profession can be 
maintained only if conduct of lawyers in violation 
of the Disciplinary Rules is brought to the atten- 
tion of the proper officials. A lawyer should re- 
veal voluntarily to those officials all unprivileged 
knowledge of conduct of lawyers which he believes 
clearly to be in violation of the Disciplinary 
Rules. 6 A lawyer should, upon request, serve on 
and assist committees and boards having responsi- 
bility for the administration of the Disciplinary 
Rules.'" 

EC 1-5 A lawyer should maintain high standards 
of professional conduct and should encourage fel- 
low lawyers to do likewise. He should be temper- 
ate and dignified, and he should refrain from all 

court in the administration of justice. Into their hands 
are committed the property, the liberty and sometimes 
the lives of their clients. This commitment demands a 
high degree of intelligence, knowledge of the law, respect 
for its function in society, sound and faithful judgment 
and, above all else, integrity of character in private and 
professional conduct." In re Monaghan, 126 Vt. 53, 222 
A.2d 665, 676 (1966) (Holden, C. J., dissenting). 

4 "A bar composed of lawyers of good moral character 
is a worthy objective but it is unnecessary to sacrifice vital 
freedoms in order to obtain that goal. It is also important 
both to society and the bar itself that lawyers be unin- 
timidated — free to think, speak, and act as members of an 
Independent Bar." Konigsberg v. State Bar, 353 U.S. 252, 
273, 1 L.Ed.2d 810, 825, 77 S.Ct. 722, 733 (1957). 

5 See ABA Canon 29. 

6 ABA Canon 28 designates certain conduct as unpro- 
fessional and then states that : "A duty to the public and 
to the profession devolves upon every member of the Bar 
having knowledge of such practices upon the part of any 
practitioner immediately to inform thereof, to the end 
that the offender may be disbarred." ABA Canon 29 
states a broader admonition : "Lawyers should expose 
without fear or favor before the proper tribunals corrupt 
or dishonest conduct in the profession." 

7 "It is the obligation of the organized Bar and the in- 
dividual lawyer to give unstinted cooperation and assistance 
to the highest court of the state in discharging its function 
and duty with respect to discipline and in purging the 
profession of the unworthy." Report of the Special Com- 
mittee on Disciplinary Procedures, 80 A.B.A.Rep. 463, 470 
(1955). 

XIX 



CODE OF PROFESSIONAL RESPONSIBILITY 


illegal and morally reprehensible conduct. 8 Be- 
cause of his position in society, even minor viola- 
tions of law by a lawyer may tend to lessen public 
confidence in the legal profession. Obedience to 
law exemplifies respect for law. To lawyers es- 
pecially, respect for the law should be more than a 
platitude. 

EC 1-6 An applicant for admission to the bar or 
a lawyer may be unqualified, temporarily or per- 
manently, for other than moral and educational 
reasons, such as mental or emotional instability. 
Lawyers should be diligent in taking steps to see 
that during a period of disqualification such per- 
son is not granted a license or, if licensed, is not 
permitted to practice. 9 In like manner, when the 
disqualification has terminated, members of the 
bar should assist such person in being licensed, or, 
if licensed, in being restored to his full right to 
practice. 

DISCIPLINARY RULES 

DR 1-101 Maintaining Integrity and Competence 
of the Legal Profession. 

(A) A lawyer is subject to discipline if he has 
made a materially false statement in, or if 
he has deliberately failed to disclose a ma- 
terial fact requested in connection with, his 
application for admission to the bar.'° 

g Cf. ABA Canon 32. 

"We decline, on the present record, to disbar Mr. Sher- 
man or to reprimand him — not because we condone his ac- 
tions, but because, as heretofore indicated, we are con- 
cerned with whether he is mentally responsible for what 
he has done. 

"The logic of the situation would seem to dictate the 
conclusion that, if he was mentally responsible for the 
conduct we have outlined, he should be disbarred; and, 
if he was not mentally responsible, he should not be per- 
mitted to practice law. 

"However, the flaw in the logic is that he may have 
been mentally irresponsible [at the time of his offensive 
conduct] . . ., and, yet, have sufficiently improved in 
the almost two and one-half years intervening to be able 
to capably and competently represent his clients. . 

"We would make clear that we are satisfied that a case 
has been made against Mr. Sherman, warranting a refusal 
to permit him to further practice law in this state unless 
he can establish his mental irresponsibility at the time of 
the offenses charged. The burden of proof is upon him. 

"If he establishes such mental irresponsibility, the bur- 
den is then upon him to establish his present capability 
to practice law." In re Sherman, 58 Wash. 2d 1, 6-7, 354 
P.2d 888, 890 (1960), cert, denied. 371 U.S. 951, 9 L.Ed.2d 
499, 83 S.Ct. 506 (1963). 

10 "This Court has the inherent power to revoke a license 
to practice law in this State, where such license was issued 
by this Court, and its issuance was procured by the fraud- 
ulent concealment, or by the false and fraudulent repre- 
sentation by the applicant of a fact which was manifestly 
material to the issuance of the license." North Carolina 
ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183 
S.E. 392, 395 (1936), cert, denied, 298 U.S. 662, 80 L.Ed. 
1387, 56 S.Ct. 752 (1936). 

See also Application of Patterson, 318 P.2d 907, 913 (Or. 
1957), cert, denied, 356 U.S. 947, 2 L.Ed. 2d 822, 78 S.Ct. 
795 (1958). 


( B) A lawyer shall not further the application for 
admission to the bar of another person known 
by him to be unqualified in respect to char- 
acter, education, or other relevant attribute." 

DR 1-102 Misconduct. 

(A) A lawyer shall not; 

(1) Violate a Disciplinary Rule. 

(2) Circumvent a Disciplinary Rule through 
actions of another. 12 

(3) Engage in illegal conduct involving 
moral turpitude. 13 

11 See ABA Canon 29. 

12 In ABA Opinion 95 (1933), which held that a municipal 
attorney could not permit police officers to interview per- 
sons with claims against the municipality when the at- 
torney knew the claimants to be represented by counsel, 
the Committee on Professional Ethics said : 

"The law officer is, of course, responsible for the acts 
of those in his department who are under his supervision 
and control." Opinion 85. In re Robinson, 136 N.Y.S. 548 
(affirmed 209 N.Y. 354-1912) held that it was a matter of 
disbarment for an attorney to adopt a general course of 
approving the unethical conduct of employees of his client, 
even though he did not actively participate therein, 

- 'The attorney should not advise or sanction 
acts by his client which he himself should not do.’ Opinion 
75." 

13 "The most obvious non-professional ground for dis- 
barment is conviction for a felony. Most states make con- 
viction for a felony grounds for automatic disbarment. 
Some of these states, including New York, make disbar- 
ment mandatory upon conviction for any felony, while 
others require disbarment only for those felonies which 
involve moral turpitude. There are strong arguments that 
some felonies, such as involuntary manslaughter, reflect 
neither on an attorney's fitness, trustworthiness, nor com- 
petence and, therefore, should not be grounds for disbar- 
ment, but most states tend to disregard these arguments 
and, following the common law rule, make disbarment 
mandatory on conviction for any felony." Note, 43 Cornell 
L.Q. 489, 490 (1958). 

"Some states treat conviction for misdemeanors as 
grounds for automatic disbarment .... However, the 
vast majority, accepting the common law rule, require 
that the misdemeanor involve moral turpitude. While the 
definition of moral turpitude may prove difficult, it seems 
only proper that those minor offenses which do not affect 
the attorney's fitness to continue in the profession should 
not be grounds for disbarment. A good example is an 
assault and battery conviction which would not involve 
moral turpitude unless done with malice and deliberation." 
Id. at 491. 

"The term 'moral turpitude' has been used in the law 
for centuries. It has been the subject of many decisions 
by the courts but has never been clearly defined because 
of the nature of the term. Perhaps the best general defi- 
nition of the term 'moral turpitude' is that it imports an 
act of baseness, vileness or depravity in the duties which 
one person owes to another or to society in general, which 
is contrary to the usual, accepted and customary rule of 
right and duty which a person should follow. 58 C.J.S. 
at page 1201. Although offenses against revenue laws 
have been held to be crimes of moral turpitude, it has also 
been held that the attempt to evade the payment of taxes 
due to the government or any subdivision thereof, while 
wrong and unlawful, does not involve moral turpitude. 58 
C.J.S. at page 1205." Comm, on Legal Ethics v. Scheer, 
149 W.Va. 721, 726-27, 143 S.E.2d 141, 145 (1965). 


XX 



CODE OF PROFESSIONAL RESPONSIBILITY 


(4) Engage in conduct involving dishonesty, 
fraud, deceit, or misrepresentation. 

(5) Engage in conduct that is prejudicial to 
the administration of justice. 

(6) Engage in any other conduct that ad- 
versely reflects on his fitness to prac- 
tice law. 14 

DR 1-103 Disclosure of Information to Authori- 
ties. 

(A) A lawyer possessing unprivileged knowledge 
of a violation of DR 1-102 shall report such 
knowledge to a tribunal or other authority 
empowered to investigate or act upon such 
violation. 15 

(B) A lawyer possessing unprivileged knowledge 
or evidence concerning another lawyer or a 
judge shall reveal fully such knowledge or 
evidence upon proper request of a tribunal or 
other authority empowered to investigate or 
act upon the conduct of lawyers or judges. 16 

CANON 2 

A Lawyer Should Assist the Legal Profession 
in Fulfilling Its Duty to Make Legal 
Counsel Available 

ETHICAL CONSIDERATIONS 

EC 2-1 The need of members of the public for 
legal services 1 is met only if they recognize their 

"The right and power to discipline an attorney, as one 
of its officers, is inherent in the court. . . . This pow- 
er is not limited to those instances of misconduct wherein 
he has been employed, or has acted, in a professional ca- 
pacity; but, on the contrary, this power may be exercised 
where his misconduct outside the scope of his professional 
relations shows him to be an unfit person to practice law." 
In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965). 

14 "It is a fair characterization of the lawyer's responsi- 
bility in our society that he stands 'as a shield,' to quote 
Devlin, J., in defense of right and to ward off wrong. 
From a profession charged with these responsibilities there 
must be exacted those qualities of truth-speaking, of a high 
sense of honor, of granite discretion, of the strictest ob- 
servance of fiduciary responsibility, that have, throughout 
the centuries, been compendiously described as 'moral char- 
acter' ". Schware v. Bd. of Bar Examiners, 353 U.S. 232, 
247 L.Ed.2d 796, 806, 77 S.Ct. 752, 761 (1957) (Frankfurter, 
J., concurring). 

"Particularly applicable here is Rule 4.47 providing that 
'A lawyer should always maintain his integrity; and shall 
not willfully commit any act against the interest of the 
Public; nor shall he violate his duty to the courts or his 
clients; nor shall he, by any misconduct, commit any of- 
fense against the laws of Missouri or the United States 
of America, which amounts to a crime involving acts done 
by him contrary to justice, honesty, modesty or good 
morals; nor shall he be guilty of any other misconduct 
whereby, for the protection of the public and those 
charged with the administration of justice, he should no 
longer be entrusted with the duties and responsibilities 
belonging to the office of an attorney.' " In re Wilson, 
391 S.W.2d 914, 917 (Mo. 1965). 

15 See ABA Canon 29; cf ABA Canon 28. 

16 Cf ABA Canons 28 and 29. 

1 "Men have need for more than a system of law; they 
have need for a system of law which functions, and that 


legal problems, appreciate the importance of seek- 
ing assistance, 2 and are able to obtain the services 
of acceptable legal counsel. 3 Hence, important 
functions of the legal profession are to educate 
laymen to recognize their legal problems, to facili- 
tate the process of intelligent selection of lawyers, 
and to assist in making legal services fully avail- 
able. 4 

Recognition of Legal Problems 
EC 2-2 The legal profession should assist laymen 
to recognize legal problems because such prob- 
lems may not be self-revealing and often are not 

means they have need for lawyers." Cheatham, The Law- 
yer's Role and Surroundings, 25 Rocky Mt.L.Rev. 405 
(1953). 

2 "Law is not self- applying; men must apply and utilize 
it in concrete cases. But the ordinary man is incapable. 
He cannot know the principles of law or the rules guiding 
the machinery of law administration; he does not know 
how to formulate his desires with precision and to put 
them into writing; he is ineffective in the presentation of 
his claims." Cheatham, The Lawyer's Role and Surround- 
ings, 25 Rocky Mt.L.Rev. 405 (1953). 

3 "This need [to provide legal services] was recognized 
by . . . Mr. [Lewis F.] Powell [dr., President, Amer- 
ican Bar Association, 1963-64], who said: 'Looking at 
contemporary America realistically, we must admit that 
despite all our efforts to date (and these have not been 
insignificant), far too many persons are not able to obtain 
equal justice under law. This usually results because their 
poverty or their ignorance has prevented them from ob- 
taining legal counsel.' " Address by E. Clinton Bamberger, 
Association of American Law Schools 1965 Annual Meeting, 
Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965). 

"A wide gap separates the need for legal services and 
its satisfaction, as numerous studies reveal. Looked at 
from the side of the layman, one reason for the gap is 
poverty and the consequent inability to pay legal fees. 
Another set of reasons is ignorance of the need for and 
the value of legal services, and ignorance of where to 
find a dependable lawyer. There is fear of the mysterious 
processes and delays of the law, and there is fear of over- 
reaching and overcharging by lawyers, a fear stimulated 
by the occasional exposure of shysters." Cheatham, Aval li- 
ability of Legal Services: The Responsibility of the In- 
dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. 
Rev. 438 (1965). 

4 "It is not only the right but the duty of the profession 
as a whole to utilize such methods as may be developed to 
bring the services of its members to those who need them, 
so long as this can be done ethically and with dignity." 
ABA Opinion 320 (1968). 

"[T]here is a responsibility on the bar to make legal 
services available to those who need them. The maxim, 
'privilege brings responsibilities,' can be expanded to read, 
exclusive privilege to render public service brings responsi- 
bility to assure that the service is available to those in 
need of it." Cheatham, Availability of Legal Services: 
The Responsibility of the Individual Lawyer and of the 
Organized Bar, 12 U.C.L.A.L.Rev. 438, 443 (1965). 

"The obligation to provide legal services for those ac- 
tually caught up in litigation carries with it the obligation 
to make preventive legal advice accessible to all. It is 
among those unaccustomed to business affairs and fearful 
of the ways of the law that such advice is often most need- 
ed. If it is not received in time, the most valiant and 
skillful representation in court may come too late." Pro- 
fessional Responsibility: Report of the Joint Conference, 
44 A.B.A.J. 1159, 1216(1958). 



CODE OF PROFESSIONAL RESPONSIBILITY 


timely noticed. 5 Therefore, lawyers acting under 
proper auspices should encourage and participate 
in educational and public relations programs con- 
cerning our legal system with particular reference 
to legal problems that frequently arise. Such ed- 
ucational programs should be motivated by a desire 
to benefit the public rather than to obtain publicity 
or employment for particular lawyers. 0 Examples 
of permissible activities include preparation of 
institutional advertisements 7 and professional arti- 
cles for lay publications s and participation in 

5 "Over a period of years institutional advertising of pro- 
grams for the benefit of the public have been approved by 
this and other Ethics Committees as well as by the courts. 

"To the same effect are opinions of this Committee : 
Opinion 1 79 dealing with radio programs presenting a sit 
uation in which legal advice is suggested in connection 
with a drafting of a will; Opinions 205 and 227 permitting 
institutional advertising of lawyer referral plans; Opinion 
191 holding that advertising by lawyer members of a non- 
bar associated sponsored plan violated Canon 27. The Illi- 
nois Ethics Committee, in its Opinion 201, sustained bar 
association institutional advertising of a check-up plan 

"This Committee has passed squarely on the question of 
the propriety of institutional advertising in connection 
with a legal check-up plan. Informal Decision C-171 quotes 
with express approval the Michigan Ethics Committee as 
follows : 

As a public service, the bar has in the past addressed 
the public as to the importance of making wills, consult- 
ing counsel in connection with real estate transactions, 
etc. In the same way, the bar, as such, may recommend 
this program, provided always that it does it in such a 
way that there is not suggestion of solicitation on behalf 
of any individual lawyer." 

ABA Opinion 307 (1962). 

6 "We recognize a distinction between teaching the lay 
public the importance of securing legal services preventive 
in character and the solicitation of professional employment 
by or for a particular lawyer. The former tends to pro- 
mote the public interest and enhance the public estimation 
of the profession. The latter is calculated to injure the 
public and degrade the profession. 

"Advertising which is calculated to teach the layman the 
benefits and advantages of preventive legal services will 
benefit the lay public and enable the lawyer to render a 
more desirable and beneficial professional service. ..." 
ABA Opinion 179 (1938). 

7 "[A bar association] may engage in a dignified institu- 
tional educational campaign so long as it does not involve 
the identification of a particular lawyer with the check-up 
program. Such educational material may point out the 
value of the annual check-up and may be printed in news- 
papers, magazines, pamphlets, and brochures, or produced 
by means of films, radio, television or other media. The 
printed materials may be distributed in a dignified way 
through the offices of persons having close dealings with 
lawyers as, for example, banks, real estate agents, insur- 
ance agents and others. They may be available in law- 
yers' offices. The bar association may prepare and dis- 
tribute to lawyers materials and forms for use in the 
annual legal check-up." ABA Opinion 307 (1962). 

8 "A lawyer may with propriety write articles for publi- 
cations in which he gives information upon the law 

.." ABA Canon 40. 

"The newsletters, by means of which respondents are 

alleged to have advertised their wares, were sent to the 

officers of union clients represented by their firm. 


seminars, lectures, and civic programs. But a law- 
yer who participates in such activities should 
shun personal publicity. 9 

EC 2-3 Whether a lawyer acts properly in vol- 
unteering advice to a layman to seek legal services 
depends upon the circumstances. 8 * 10 * The giving of 
advice that one should take legal action could well 
be in fulfillment of the duty of the legal profession 
to assist laymen in recognizing legal problems. 1 1 
The advice is proper only if motivated by a desire 
to protect one who does not recognize that he may 
have legal problems or who is ignorant of his legal 
rights or obligations. Hence, the advice is im- 
proper if motivated by a desire to obtain personal 
benefit, 12 secure personal publicity, or cause liti- 
gation to be brought merely to harass or injure 
another. Obviously, a lawyer should not contact 

They contain no reference to any cases handled by the 
respondents. Their contents are confined to rulings of 
boards, commissions and courts on problems of interest 
to labor union, together with proposed and completed leg- 
islation important to the Brotherhood, and other items 
which might affect unions and their members. The re- 
spondents cite Opinion 213 of the Committee on Profession- 
al Ethics and Grievances as permitting such practice. After 
studying this opinion, we agree that sending of newsletters 
of the above type to regular clients does not offend Canon 
27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73 
(1965). 

Cf. ABA Opinion 92 (1933). 

9 Cf. ABA Opinions 307 (1962) and 179 (1938). 

"There is no ethical or other valid reason why an attor- 
ney may not write articles on legal subjects for magazines 
and newspapers. The fact that the publication is a trade 
journal or magazine, makes no difference as to the ethical 
question involved. On the other hand, it would be un- 
ethical and contrary to the precepts of the Canons for the 
attorney to allow his name to be carried in the magazine 
or other publication . . . as a free legal adviser for 
the subscribers to the publication. Such would be contrary 
to Canons 27 and 35 and Opinions heretofore announced 
by the Committee on Professional Ethics and Grievances. 
(See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936). 

10 See ABA Canon 28. 

1 1 This question can assume constitutional dimensions : 
"We meet at the outset the contention that 'solicitation' 
is wholly outside the area of freedoms protected by the 
First Amendment. To this contention there are two an- 
swers. The first is that a State cannot foreclose the ex- 
ercise of constitutional rights by mere labels. The second 
is that abstract discussion is not the only species of com- 
munication which the Constitution protects; the First 
Amendment also protects vigorous advocacy, certainly of 
lawful ends, against governmental intrusion. . 

"However valid may be Virginia's interest in regulating 
the traditionally illegal practice of barratry, maintenance 
and champerty, that interest does not justify the prohibi- 
tion of the NAACP activities discrosed by this record. Ma- 
licious intent was of the essence of the common-law offens- 
es of fomenting or stirring up litigation. And whatever 
may be or may have been true of suits against governments 
in other countries, the exercise in our own, as in this case 
of First Amendment rights to enforce Constitutional rights 
through litigation, as a matter of law, cannot be deemed 
malicious." NAACP u. Button, 371 U.S. 415, 429, 439-40, 

9 L.Ed.2d 405, 415-16, 422, 83 S.Ct. 328, 336, 341 (1963). 

12 See ABA Canon 27. 


XXII 



CODE OF PROFESSIONAL RESPONSIBILITY 


a non-client, directly or indirectly, for the purpose 
of being retained to represent him for compensa- 
tion. 

EC 2-4 Since motivation is subjective and often 
difficult to judge, the motives of a lawyer who vol- 
unteers advice likely to produce legal controversy 
may well be suspect if he receives professional em- 
ployment or other benefits as a result. 13 A lawyer 
who volunteers advice that one should obtain the 
services of a lawyer generally should not himself 
accept employment, compensation, or other benefit 
in connection with that matter. However, it is 
not improper for a lawyer to volunteer such ad- 
vice and render resulting legal services to close 
friends, relatives, former clients (in regard to mat- 
ters germane to former employment), and regular 
clients. 14 

EC 2-5 A lawyer who writes or speaks for the 
purpose of educating members of the public to 
recognize their legal problems should carefully 
refrain from giving or appearing to give a general 
solution applicable to all apparently similar in- 
dividual problems, 15 since slight changes in fact 
situations may require a material variance in the 
applicable advice; otherwise, the public may be 
misled and misadvised. Talks and writings by 
lawyers for laymen should caution them not to 
attempt to solve individual problems upon the basis 
of the information contained therein. 10 

13 "The Canons of Professional Ethics of the American 
Bar Association and the decisions of the courts quite gen- 
erally prohibit the direct solicitation of business for gain 
by an attorney either through advertisement or personal 
communication; and also condemn the procuring of busi- 
ness by indirection through touters of any kind. It is 
disreputable for an attorney to breed litigation by seeking 
out those who have claims for personal injuries or other 
grounds of action in order to secure them as clients, or 
to employ agents or runners, or to reward those who bring 
or influence the bringing of business to his office. . . . 
Moreover, it tends quite easily to the institution of base- 
less litigation and the manufacture of perjured testimony. 
From early times, this danger has been recognized in the 
law by the condemnation of the crime of common barratry, 
or the stirring up of suits or quarrels between individuals 
at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75 
(D. Mary. 1934). 

14 "Rule 2. 

"§a. 

"[A] member of the State Bar shall not solicit profes- 
sional employment by 

"(1) Volunteering counsel or advice except where ties 
of blood relationship or trust make it appropriate." Cal. 
Business and Professions Code § 6076 (West 1962). 

15 "Riule 18. . .a member of the State Bar shall not 
advise inquirers or render opinions to them through or in 
connection with a newspaper, radio or other publicity 
medium of any kind in respect to their specific legal prob- 
lems, whether or not such attorney shall be compensated 
for his services." Cal. Business and Professions Code § 6076 
(West 1962). 

16 "In any case where a member might well apply the 
advice given in the opinion to his individual affairs, the 
lawyer rendering the opinion [concerning problems com- 
mon to members of an association and distributed to the 
members through a periodic bulletin] should specifically 
state that this opinion should not be relied on by any 


Selection of a Lawyer: Generally 
EC 2-6 Formerly a potential client usually knew 
the reputations of local lawyers for competency 
and integrity and therefore could select a prac- 
titioner in whom he had confidence. This tradi- 
tional selection process worked well because it was 
initiated by the client and the choice was an in- 
formed one. 

EC 2-7 Changed conditions, however, have seri- 
ously restricted the effectiveness of the traditional 
selection process. Often the reputations of law- 
yers are not sufficiently known to enable laymen 
to make intelligent choices. 17 The law has become 
increasingly complex and specialized. Few law- 
yers are willing and competent to deal with every 
kind of legal matter, and many laymen have diffi- 
culty in determining the competence of lawyers 
to render different types of legal services. The 
selection of legal counsel is particularly difficult 
for transients, persons moving into new areas, 
persons of limited education or means, and others 
who have little or no contact with lawyers. 18 

EC 2-8 Selection of a lawyer by a layman often 
is the result of the advice and recommendation 
of third parties — relatives, friends, acquaintances, 
business associates, or other lawyers. A layman 
is best served if the recommendation is disinterest- 
ed and informed. In order that the recommenda- 
tion be disinterested, a lawyer should not seek to 
influence another to recommend his employment. 10 
A lawyer should not compensate another person 
for recommending him, for influencing a prospec- 
tive client to employ him, or to encourage future 
recommendations .20 

Selection of a Lawyer: Professional Notices and 
Listings 

EC 2-9 The traditional ban against advertising by 
lawyers, which is subject to certain limited excep- 
tions, is rooted in the public interest. Competitive 
advertising would encourage extravagant, artful, 
self-laudatory 21 brashness in seeking business and 

member as a basis for handling his individual affairs, but 
that in eveiy case he should consult his counsel. In the 
publication of the opinion the association should make a 
similar statement." ABA Opinion 273 (1946). 

1 ' "A group of recent interrelated changes bears directly 
on the availability of legal services. . . . [One] change 
is the constantly accelerating urbanization of the countiy 
and the decline of personal and neighborhood knowledge of 
whom to retain as a professional man." Cheatham, Avail- 
ability of Legal Services: The Responsibility of the In- 
dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. 
Rev. 438, 440 (1965). 

18 Cf Cheatham, A Lawyer When Needed: Legal Services 
for the Middle Classes, 63 Colum.L.Rev. 973, 974 (1963). 

See ABA Canon 27. 

20 See ABA Canon 28. 

21 " 'Self-laudation' is a very flexible concept; Canon 27 
does not define it, so what course of conduct would be said 
to constitute it under a given state of facts would no doubt 
vary as the opinions of men vary. As a famous English 
judge said, it would vary as the length of the chancellor’s 
foot. It must be in words and tone that will 'offend the 
traditions and lower the tone of our profession.' When it 


XXIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


thus could mislead the layman. 22 Furthermore, 
it would inevitably produce unrealistic expecta- 
tions in particular cases and bring about distrust 
of the law and lawyers. 23 Thus, public confidence 
in our legal system would be impaired by such 
advertisements of professional services. The at- 
torney-client relationship is personal and unique 
and should not be established as the result of 
pressures and deceptions. 24 History has demon- 
strated that public confidence in the legal system is 
best preserved by strict, self-imposed controls over, 
rather than by unlimited, advertising. 

does this, it is 'reprehensible.' This seems to be the test 
by which 'self-laudation' is measured." State v. Nichols, 
151 So. 2d 257, 259 (Fla. 1963). 

22 "Were it not for the prohibitions of . . . [Canon 
27] lawyers could, and no doubt would be forced to, en- 
gage competitively in advertising of all kinds in which 
each would seek to explain to the public why he could 
serve better and accomplish more than his brothers at the 
Bar. 

"Susceptible as we are to advertising the public would 
then be encouraged to choose an attorney on the basis of 
which had the better, more attractive advertising program 
rather than on his reputation for professional ability. 

"This would certainly maim, if not destroy, the dignity 
and professional status of the Bar of this State." State v. 
Nichols, 151 So. 2d 257, 268 (Fla. 1963) (O'Connell, J., con- 
curring in part and dissenting in part). 

23 Cf. ABA Canon 8. 

24 "The prohibition of advertising by lawyers deserves 
some examination. All agree that advertising by an in- 
dividual lawyer, if permitted, will detract from the dignity 
of the profession, but the matter goes deeper than this. 
Perhaps the most understandable and acceptable additional 
reasons we have found are stated by one commentator as 
follows : 

" '1. That advertisements, unless kept within narrow 
limits, like any other form of solicitation, tend to 
stir up litigation, and such tendency is against the 
public interest. 

" '2. That if there were no restrictions on advertise- 
ments, the least capable and least honorable lawyers 
would be apt to publish the most extravagant and 
alluring material about themselves, and that the 
harm which would result would, in large measure, 
fall on the ignorant and on those least able to af- 
ford it. 

" '3. That the temptation would be strong to hold out 
as inducements for employment, assurances of suc- 
cess or of satisfaction to the client, which assur- 
ances could not be realized, and that the giving of 
such assurances would materially increase the 
temptation to use ill means to secure the end de- 
sired by the client. 

" 'In other words, the reasons for the rule, and for the 
conclusion that it is desirable to prohibit advertising 
entirely, or to limit it within such narrow bounds 
that it will not admit of abuse, are based on the 
possibility and probability that this means of publicity, 
if permitted, will be abused.' Harrison Hewitt in a 
comment at 15 A.B.A.J. 116 (1929) reproduced in 
Cheatham, Cases and Materials on the Legal Profes- 
sion (2d Ed., 1955), p. 525. 

"Of course, competition is at the root of the abuses in 
advertising. If the individual lawyer were permitted to 
compete with his fellows in publicity through advertising, 
we have no doubt that Mr. Hewitt's three points, quoted 
above, would accurately forecast the result." Jacksonville 
Bar Ass'n v. Wilson, 102 So.2d 292, 294-95 (Fla. 1958). 


EC 2-10 Methods of advertising that are subject 
to the objections stated above 25 should be and are 
prohibited. 26 However, the Disciplinary Rules 
recognize the value of giving assistance in the 
selection process through forms of advertising that 
furnish identification of a lawyer while avoiding 
such objections. For example, a lawyer may be 
identified in the classified section of the telephone 
directory, 27 in the office building directory, and on 
his letterhead and professional card. 28 But at all 
times the permitted notices should be dignified and 
accurate. 

EC 2-11 The name under which a lawyer con- 
ducts his practice may be a factor in the selection 
process. 29 The use of a trade name or an assumed 
name could mislead laymen concerning the identi- 
ty, responsibility, and status of those practicing 
thereunder. 30 Accordingly, a lawyer in private 
practice should practice only under his own name, 
the name of a lawyer employing him, a partner- 
ship name composed of the name of one or more 
of the lawyers practicing in a partnership, or, if 
permitted by law, in the name of a professional 
legal corporation, which should be clearly designat- 
ed as such. For many years some law firms have 
used a firm name retaining one or more names 
of deceased or retired partners and such practice 
is not improper if the firm is a bona fide successor 
of a firm in which the deceased or retired person 
was a member, if the use of the name is authorized 
by law or by contract, and if the public is not mis- 
led thereby. 31 However, the name of a partner 

25 See ABA Canon 27. 

26 Cf. ABA Opinions 309 (1963) and 284 (1951). 

27 Cf. ABA Opinions 313 (1964) and 284 (1951). 

28 See ABA Canon 27. 

29 Cf. ABA Opinion 303 (1961). 

so See ABA Canon 33. 

31 Id. 

"The continued use of a firm name by one or more sur- 
viving partners after the death of a member of the firm 
whose name is in the firm title is expressly permitted by 
the Canons of Ethics. The reason for this is that all of 
the partners have by their joint and several efforts over a 
period of years contributed to the good will attached to 
the firm name. In the case of a firm having widespread 
connections, this good will is disturbed by a change in 
firm name every time a name partner dies, and that re- 
flects a loss in some degree of the good will to the building 
up of which the surviving partners have contributed their 
time, skill and labor through a period of years. To avoid 
this loss the firm name is continued, and to meet the re- 
quirements of the Canon the individuals constituting the 
firm from time to time are listed." ABA Opinion 267 
(1945). 

"Accepted local custom in New York recognizes that the 
name of a law firm does not necessarily identify the in- 
dividual members of the firm, and hence the continued use 
of a firm name after the death of one or more partners is 
not a deception and is permissible. . . . The continued 
use of a deceased partner's name in the firm title is not 
affected by the fact that another partner withdraws from 
the firm and his name is dropped, or the name of the new 
partner is added to the firm name." Opinion No. 45, Com- 
mittee on Professional Ethics, New York State Bar Assn, 
39 N. Y. St. B. J. 455 (1967) . 

Cf. ABA Opinion 258 (1943). 


XXIV 



CODE OF PROFESSIONAL RESPONSIBILITY 


who withdraws from a firm but continues to prac- 
tice law should be omitted from the firm name 
in order to avoid misleading the public. 

EC 2-12 A lawyer occupying a judicial, legisla- 
tive, or public executive or administrative position 
who has the right to practice law concurrently may 
allow his name to remain in the name of the firm 
if he actively continues to practice law as a mem- 
ber thereof. Otherwise, his name should be re- 
moved from the firm name, 32 and he should not 
be identified as a past or present member of the 
firm; and he should not hold himself out as being 
a practicing lawyer. 

EC 2-13 In order to avoid the possibility of mis- 
leading persons with whom he deals, a lawyer 
should be scrupulous in the representation of his 
professional status. 33 He should not hold himself 
out as being a partner or associate of a law firm 
if he is not one in fact, 34 and thus should not hold 
himself out as a partner or associate if he only 
shares offices with another lawyer. 35 

EC 2-14 In some instances a lawyer confines his 
practice to a particular field of law. 36 In the ab- 
sence of state controls to insure the existence of 
special competence, a lawyer should not be per- 
mitted to hold himself out as a specialist 37 or as 
having special training or ability, other than in the 
historically excepted fields of admiralty, trade- 
mark, and patent law. 38 

32 Cf. ABA Canon 33 and ABA Opinion 315 (1965). 

33 Cf. ABA Opinions 283 (1950) and 81 (1932). 

34 See ABA Opinion 316 (1967). 

35 "The word 'associates' has a variety of meanings. 
Principally through custom the word when used on the 
letterheads of law firms has come to be regarded as de- 
scribing those who are employees of the firm. Because 
the word has acquired this special significance in connec- 
tion with the practice of the law the use of the word to 
describe lawyer relationships other than employer-employee 
is likely to be misleading." In re Sussman and Tanner, 

241 Ore. 246, 248, 405 P.2d 355, 356 (1965). 

According to ABA Opinion 310 (1963), use of the term 
"associates" would be misleading in two situations ; (1) 
where two lawyers are partners and they share both re- 
sponsibility and liability for the partnership ; and (2) 
where two lawyers practice separately, sharing no responsi- 
bility or liability, and only share a suite of offices and some 
costs. 

36 "For a long time, many lawyers have, of necessity, 
limited their practice to certain branches of law. The 
increasing complexity of the law and the demand of the 
public for more expertness on the part of the lawyer has, 
in the past few years — particularly in the last ten years — 
brought about specialization on an increasing scale." Re- 
port of the Special Committee on Specialization and 
Specialized Legal Services , 79 A.B.A.Rep. 582, 584 (1954). 

37 

"In varying degrees specialization has become the 
modus operandi throughout the legal profession. . . . 
American society is specialization conscious. The present 
Canons, however, do not allow lawyers to make known to 
the lay public the fact that they engage in the practice 
of a specialty. ..." Tucker, The Large Law Firm: 
Considerations Concerning the Modernization of the Canons 
of Professional Ethics, 1965 Wis.L.Rev. 344, 348' 49 (1965). 

38 See ABA Canon 27. 

XXV 


EC 2-15 The legal profession has developed law- 
yer referral systems designed to aid individuals 
who are able to pay fees but need assistance in 
locating lawyers competent to handle their par- 
ticular problems. Use of a lawyer referral system 
enables a layman to avoid an uninformed selection 
of a lawyer because such a system makes possible 
the employment of competent lawyers who have 
indicated an interest in the subject matter in- 
volved. Lawyers should support the principle 
of lawyer referral systems and should encourage 
the evolution of other ethical plans which aid in 
the selection of qualified counsel. 

Financial Ability to Employ Counsel: Generally 
EC 2-16 The legal profession cannot remain a 
viable force in fulfilling its role in our society un- 
less its members receive adequate compensation 
for services rendered, and reasonable fees 39 
should be charged in appropriate cases to clients 
able to pay them. Nevertheless, persons unable 
to pay all or a portion of a reasonable fee should 
be able to obtain necessary legal services, 40 and 
lawyers should support and participate in ethical 
activities designed to achieve that objective. 41 

Financial Ability to Employ Counsel: Persons 
Able to Pay Reasonable Fees 

EC 2-17 The determination of a proper fee re- 
quires consideration of the interests of both client 
and lawyers. 42 A lawyer should not charge more 
than a reasonable fee, 43 for excessive cost of legal 
service would deter laymen from utilizing the legal 
system in protection of their rights. Furthermore, 
an excessive charge abuses the professional rela- 
tionship between lawyer and client. On the other 
hand, adequate compensation is necessary in order 
to enable the lawyer to serve his client effectively 
and to preserve the integrity and independence of 
the profession. 44 

EC 2-18 The determination of the reasonableness 
of a fee requires consideration of all relevant cir- 
cumstances, 45 including those stated in the Dis- 
ciplinary Rules. The fees of a lawyer will vary ac- 
cording to many factors, including the time re- 
quired, his experience, ability, and reputation, the 

39 See ABA Canon 12. 

40 Cf. ABA Canon 12. 

41 "If there is any fundamental proposition of govern- 
ment on which all would agree, it is that one of the highest 
goals of society must be to achieve and maintain equality 
before the law. Yet this ideal remains an empty form of 
words unless the legal profession is ready to provide ade- 
quate representation for those unable to pay the usual 
fees." Professional Representation: Report of the Joint 
Conference, 44 A.B.A.J. 1159, 1216 (1958). 

42 See ABA Canon 12. 

43 Cf. ABA Canon 12. 

44 "When members of the Bar are induced to render legal 
services for inadequate compensation, as a consequence 
the quality of the service rendered may be lowered, the 
welfare of the profession injured and the administration 
of justice made less efficient." ABA Opinion 302 (1961). 

Cf. ABA Opinion 307 (1962). 

45 See ABA Canon 12. 



CODE OF PROFESSIONAL RESPONSIBILITY 


nature of the employment, the responsibility in- 
volved, and the results obtained. Suggested fee 
schedules and economic reports of state and local 
bar associations provide some guidance on the sub- 
ject of reasonable fees. 46 It is a commendable and 
long-standing tradition of the bar that special con- 
sideration is given in the fixing of any fee for 
services rendered a brother lawyer or a member of 
his immediate family. 

EC 2-19 As soon as feasible after a lawyer has 
been employed, it is desirable that he reach a clear 
agreement with his client as to the basis of the 
fee charges to be made. Such a course will not 
only prevent later misunderstanding but will also 
work for good relations between the lawyer and 
the client. It is usually beneficial to reduce to 
writing the understanding of the parties regarding 
the fee, particularly when it is contingent. A law- 
yer should be mindful that many persons who de- 
sire to employ him may have had little or no ex- 
perience with fee charges of lawyers, and for this 
reason he should explain fully to such persons the 
reasons for the particular fee arrangement he 
proposes. 

EC 2-20 Contingent fee arrangements 47 in civil 
cases have long been commonly accepted in the 
United States in proceedings to enforce claims. 
The historical bases of their acceptance are that 
(1) they often, and in a variety of circumstances, 
provide the only practical means by which one 
having a claim against another can economically 
afford, finance, and obtain the services of a com- 
petent lawyer to prosecute his claim, and (2) a 
successful prosecution of the claim produces a res 
out of which the fee can be paid. 48 Although a 
lawyer generally should decline to accept employ- 
ment on a contingent fee basis by one who is able 
to pay a reasonable fixed fee, it is not necessarily 
improper for a lawyer, where justified by the par- 
ticular circumstances of a case, to enter into a con- 
tingent fee contract in a civil case with any client 
who, after being fully informed of all relevant fac- 
tors, desires that arrangement. Because of the 

48 Id. 

"[U]nder . . . [Canon 12], this Committee has con- 
sistently held that minimum fee schedules can only be 
suggested or recommended and cannot be made obligatory 
. . " ABA Opinion 302 (1961). 

"[A] compulsory minimum fee schedule is contrary to 
Canon 12 and repeated pronouncements of this committee." 
ABA Opinion 190 (1939). 

Cf. ABA Opinions 171 (1937) and 28 (1930). 

47 See ABA Canon 13; see also Mackinnon, Contingent • 
Fees for Legal Services (1964) (A report of the American 
Bar Foundation). 

"A contract for a reasonable contingent fee where sanc- 
tioned by law is permitted by Canon 13, but the client 
must remain responsible to the lawyer for expenses ad- 
vanced by the latter. 'There is to be no barter of the 
privilege of prosecuting a cause for gain in exchange for 
the promise of the attorney to prosecute at his own ex- 
pense. 1 (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, 
270-271.)" ABA Opinion 246 (1942). 

48 See Comment, Providing Legal Services for the Middle 
Class in Civil Matters: The Problem, the Duty and a So- 
lution, 26 U. Pitt. L. Rev. 811, 829 (1965). 


human relationships involved and the unique char- 
acter of the proceedings, contingent fee arrange- 
ments in domestic relation cases are rarely justi- 
fied. In administrative agency proceedings con- 
tingent fee contracts should be governed by the 
same considerations as in other civil cases. Public 
policy properly condemns contingent fee arrange- 
ments in criminal cases, largely on the ground that 
legal services in criminal cases do not produce a 
res with which to pay the fee. 

EC 2-21 A lawyer should not accept compensa- 
tion or any thing of value incident to his employ- 
ment or services from one other than his client 
without the knowledge and consent of his client 
after full disclosure. 49 

EC 2-22 Without the consent of his client, a law- 
yer should not associate in a particular matter an- 
other lawyer outside his firm. A fee may prop- 
erly be divided between lawyers 50 properly as- 
sociated if the division is in proportion to the serv- 
ices performed and the responsibility assumed 
by each lawyer 51 and if the total fee is reasonable. 

EC 2-23 A lawyer should be zealous in his ef- 
forts to avoid controversies over fees with clients 52 
and should attempt to resolve amicably any differ- 
ences on the subject. 53 He should not sue a client 
for a fee unless necessary to prevent fraud or 
gross imposition by the client. 54 

49 See ABA Canon 38. 

"Of course, as . . . [Informal Opinion 679] points 
out, there must be full disclosure of the arrangement [that 
an entity other than the client pays the attorney's fee] 
by the attorney to the client ..." ABA Opinion 320 
(1968). 

50 "Only lawyers may share in ... a division of 
fees, but ... it is not necessary that both lawyers be 
admitted to practice in the same state, so long as the divi- 
sion was based on the division of services or responsibili- 
ty." ABA Opinion 316(1967). 

51 See ABA Canon 34. 

"We adhere to our previous rulings that where a lawyer 
merely brings about the employment of another lawyer 
but renders no service and assumes no responsibility in the 
matter, a division of the latter's fee is improper. (Opinions 
1 8 and 1 53). 

"It is assumed that the bar, generally, understands what 
acts or conduct of a lawyer may constitute 'services' to a 
client within the intendment of Canon 12. Such acts or 
conduct invariably, if not always, involve 'responsibility' 
on the part of the lawyer, whether the word 'responsibili- 
ty' be construed to denote the possible resultant legal or 
moral liability on the part of the lawyer to the client or 
to others, or the onus of deciding what should or should 
not be done in behalf of the client. The word 'services’ 
in Canon 12 must be construed in this broad sense and may 
apply to the selection and retainer of associate counsel as 
well as to other acts or conduct in the client's behalf." 
ABA Opinion 204 (1940). 

52 See ABA Canon 14. 

53 Cf. ABA Opinion 320 (1968). 

54 See ABA Canon 14. 

"Ours is a learned profession, not a mere money-getting 
trade. . . . Suits to collect fees should, be avoided. 
Only where the circumstances imperatively require, should 
resort be had to a suit to compel payment. And where a 
lawyer does resort to a suit to enforce payment of fees 


XXVI 



CODE OF PROFESSIONAL RESPONSIBILITY 


Financial Ability to Employ Counsel: Persons 
Unable to Pay Reasonable Fees 

EC 2-24 A layman whose financial ability is not 
sufficient to permit payment of any fee cannot 
obtain legal services, other than in cases where 
a contingent fee is appropriate, unless the services 
are provided for him. Even a person of moderate 
means may be unable to pay a reasonable fee 
which is large because of the complexity, novelty, 
or difficulty of the problem or similar factors. 55 

EC 2-25 Historically, the need for legal services 
of those unable to pay reasonable fees has been 
met in part by lawyers who donated their services 
or accepted court appointments on behalf of such 
individuals. The basic responsibility for providing 
legal services for those unable to pay ultimately 
rests upon the individual lawyer, and personal 
involvement in the problems of the disadvantaged 
can be one of the most rewarding experiences in 
the life of a lawyer. Every lawyer, regardless of 
professional prominence or professional workload, 
should find time to participate in serving the dis- 
advantaged. The rendition of free legal services 
to those unable to pay reasonable fees continues 
to be an obligation of each lawyer, but the efforts 
of individual lawyers are often not enough to meet 
the need. 56 Thus it has been necessary for the 

which involves a disclosure, he should carefully avoid any 
disclosure not clearly necessary to obtaining or defending 
his rights." ABA Opinion 250 (1943). 

But cf. ABA Opinion 320 (1968). 

55 "As a society increases in size, sophistication and tech- 
nology, the body of laws which is required to control that 
society also increases in size, scope and complexity. With 
this growth, the law directly affects more and more facets 
of individual behavior, creating an expanding need for legal 
services on the part of the individual members of the 
society. . . . As legal guidance in social and commer- 
cial behavior increasingly becomes necessary, there will 
come a concurrent demand from the layman that such 
guidance be made available to him. This demand will not 
come from those who are able to employ the best of legal 
talent, nor from those who can obtain legal assistance at 
little or no cost. It will come from the large 'forgotten 
middle income class,' who can neither afford to pay pro- 
portionately large fees nor qualify for ultra-low-cost serv- 
ices. The legal profession must recognize this inevitable 
demand and consider methods whereby it can be satisfied. 
If the profession fails to provide such methods, the laity 
will." Comment, Providing Legal Services for the Middle 
Class in Civil Matters: The Problem, the Duty and a 
Solution, 26 U.Pitt.L.Rev. 811, 811-12 (1965). 

"The issue is not whether we shall do something or do 
nothing. The demand for ordinary everyday legal justice 
is so great and the moral nature of the demand is so strong 
that the issue has become whether we devise, maintain, 
and support suitable agencies able to satisfy the demand 
or, by our own default, force the government to take over 
the job, supplant us, and ultimately dominate us." Smith, 
Legal Service Offices for Persons of Moderate Means, 1949 
Wis.L.Rev. 416, 418 (1949). 

56 "Lawyers have peculiar responsibilities for the just ad- 
ministration of the law, and these responsibilities include 
providing advice and representation for needy persons. To 
a degree not always appreciated by the public at large, the 
bar has performed these obligations with zeal and devotion. 
The Committee is persuaded, however, that a system of 
justice that attempts, in mid- twentieth century America, 
to meet the needs of the financially incapacitated accused 


profession to institute additional programs to pro- 
vide legal services. 57 Accordingly, legal aid of- 
fices, 58 lawyer referral services, 59 and other relat- 
ed programs have been developed, and others will 
be developed, by the profession. 60 Every lawyer 
should support all proper efforts to meet this need 
for legal services. 61 

through primary or exclusive reliance on the uncompensat- 
ed services of counsel will prove unsuccessful and inade- 
quate. ... A system of adequate representation, there- 
fore, should be structured and financed in a manner re- 
flecting its public importance. ... We believe that 
fees for private appointed counsel should be set by the 
court within maximum limits established by the statute." 
Report of the Att'y Gen's Comm, on Poverty and the Ad- 
ministration of Criminal Justice 41-43 (1963). 

57 "At present this representation [of those unable to pay 
usual fees] is being supplied in some measure through the 
spontaneous generosity of individual lawyers, through legal 
aid societies, and — increasingly— through the organized ef- 
forts of the Bar. If those who stand in need of this serv- 
ice know of its availability and their need is in fact ade- 
quately met, the precise mechanism by which this service 
is provided becomes of secondary importance. It is of 
great importance, however, that both the impulse to ren- 
der this service, and the plan for making that impulse 
effective, should arise within the legal profession itself." 
Professional Responsibility: Report of the Joint Confer- 
ence, 44 A.B.A.J. 1159, 1216 (1958). 

58 "Free legal clinics carried on by the organized bar are 
not ethically objectionable. On the contrary, they serve a 
very worthwhile purpose and should be encouraged." ABA 
Opinion 191 (1939). 

59 "We are of the opinion that the [lawyer referral] 
plan here presented does not fall within the inhibition of 
the Canon. No solicitation for a particular lawyer is in- 
volved. The dominant purpose of the plan is to provide as 
an obligation of the profession competent legal services to 
persons in low-income groups at fees within their ability 
to pay. The plan is to be supervised and directed by the 
local Bar Association. There is to be no advertisement 
of the names of the lawyers constituting the panel. The 
general method and purpose of the plan only is to be ad- 
vertised. Persons seeking the legal services will be direct- 
ed to members of the panel by the Bar Association. Aside 
from the filing of the panel with the Bar Association, 
there is to be no advertisement of the names of the lawyers 
constituting the panel. If these limitations are observed, 
we think there is no solicitation of business by or for par- 
ticular lawyers and no violation of the inhibition of Canon 
27." ABA Opinion 205 (1940). 

60 "Whereas the American Bar Association believes that 
it is a fundamental duty of the bar to see to it that all 
persons requiring legal advice be able to attain it, irrespec- 
tive of their economic status . . 

"Resolved, that the Association approves and sponsors 
the setting up by state and local bar associations of lawyer 
referral plans and low-cost legal service methods for the 
purpose of dealing with cases of persons who might not 
otherwise have the benefit of legal advice . . Pro- 
ceedings of the House of Delegates of the American Bar 
Association, Oct. 30, 1946, 71 A.B.A.Rep. 103, 109-10 (1946). 

61 "The defense of indigent citizens, without compensa- 
tion, is carried on throughout the country by lawyers rep- 
resenting legal aid societies, not only with the approval, 
but with the commendation of those acquainted with the 
work. Not infrequently services are rendered out of 
sympathy or for other philanthropic reasons, by individual 
lawyers who do not represent legal aid societies. There 
is nothing whatever in the Canons to prevent a lawyer 


XXVII 



CODE OF PROFESSIONAL RESPONSIBILITY 


Acceptance and Retention of Employment 
EC 2-26 A lawyer is under no obligation to act as 
adviser or advocate for every person who may 
wish to become his client; but in furtherance of 
the objective of the bar to make legal services fully 
available, a lawyer should not lightly decline prof- 
fered employment. The fulfillment of this objec- 
tive requires acceptance by a lawyer of his share 
of tendered employment which may be unattractive 
both to him and the bar generally. 62 

EC 2-27 History is replete with instances of dis- 
tinguished and sacrificial services by lawyers who 
have represented unpopular clients and causes. 
Regardless of his personal feelings, a lawyer 
should not decline representation because a client 
or a cause is unpopular or community reaction is 
adverse. 63 

EC 2-28 The personal preference of a lawyer to 
avoid adversary alignment against judges, other 
lawyers, 64 public officials, or influential members 
of the community does not justify his rejection 
of tendered employment. 

EC 2-29 When a lawyer is appointed by a court 
or requested by a bar association to undertake 
representation of a person unable to obtain coun- 
sel, whether for financial or other reasons, he 
should not seek to be excused from undertaking 

from performing such an act, nor should there be." ABA 
Opinion 148 (1935). 

62 But cf. ABA Canon 3 1 . 

63 "One of the highest services the lawyer can render to 
society is to appear in court on behalf of clients whose 
causes are in disfavor with the general public." Profession- 
al Responsibility: Report of the Joint Conference, 44 A.B. 
A.J. 1159, 1216 (1958). 

One author proposes the following proposition to be in- 
cluded in "A Proper Oath for Advocates” : "I recognize 
that it is sometimes difficult for clients with unpopular 
causes to obtain proper legal representation. I will do all 
that I can to assure that the client with the unpopular 
cause is properly represen t ed, and that the law y er re p re- 
senting such a client receives credit from and support of 
the bar for handling such a matter." Thode, The Ethical 
Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961). 

"§ 6068. ... It is the duty of an attorney : 

"(h) Never to reject, for any consideration personal to 
himself, the cause of the defenseless or the oppressed." 
Cal. Business and Professions Code § 6068 (West 1962). 
Virtually the same language is found in the Oregon stat- 
utes at Ore.Rev.Stats. Ch. 9 § 9.460(8). 

See Rostow, The Lawyer and His Client, 48 A.B. A.J. 
25 and 146 (1962). 

6 4 See ABA Canons 7 and 29. 

"We are of the opinion that it is not professionally im- 
proper for a lawyer to accept employment to compel an- 
other lawyer to honor the just claim of a layman. On the 
contrary, it is highly proper that he do so. Unfortunately, 
there appears to be a widespread feeling among laymen 
that it is difficult, If not impossible, to obtain justice when 
they have claims against members of the Bar because other 
lawyers will not accept employment to proceed against 
them. The honor of the profession, whose members proud- 
ly style themselves officers of the court, must surely be 
sullied if its members bind themselves by custom to refrain 
from enforcing just claims of laymen against lawyers." 
ABA Opinion 144 (1935). 


the representation except for compelling reasons. 65 
Compelling reasons do not include such factors as 
the repugnance of the subject matter of the pro- 
ceeding, the identity 66 or position of a person in- 
volved in the case, the belief of the lawyer that 
the defendant in a criminal proceeding is guilty, 67 
or the belief of the lawyer regarding the merits 
of the civil case. 68 

EC 2-30 Employment should not be accepted by 
a lawyer when he is unable to render competent 
service 69 or when he knows or it is obvious that 
the person seeking to employ him desires to in- 
stitute or maintain an action merely for the pur- 
pose of harassing or maliciously injuring another. 70 
Likewise, a lawyer should decline employment if 
the intensity of his personal feeling, as distin- 
guished from a community attitude, may impair 
his effective representation of a prospective client. 
If a lawyer knows a client has previously obtained 
counsel, he should not accept employment in the 
matter unless the other counsel approves 71 or 
withdraws, or the client terminates the prior em- 
ployment. 72 

EC 2-31 Full availability of legal counsel requires 
both that persons be able to obtain counsel and that 
lawyers who undertake representation complete 
the work involved. Trial counsel for a convicted 
defendant should continue to represent his client 
by advising whether to take an appeal and, if the 
appeal is prosecuted, by representing him through 
the appeal unless new counsel is substituted or 
withdrawal is permitted by the appropriate court. 

65 ABA Canon 4 uses a slightly different test, saying, "A 
lawyer assigned as counsel for an indigent prisoner ought 
not to ask to be excused for any trivial reason . . .." 

66 Cf. ABA Canon 7. 

67 See ABA Canon 5. 

68 Dr. Johnson's reply to Boswell upon being asked what 
he thought of "supporting a cause which you know to be 
bad" was : "Sir, you do not know it to be good or bad 
till the Judge determines it. I have said that you are to 
state facts fairly ; so that your thinking, or what you 
call knowing, a cause to be bad, must be from reason- 
ing, must be from supposing your arguments to be weak 
and inconclusive. But, Sir, that is not enough. An argu- 
ment which does not convince yourself, may convince the 
Judge to whom you urge it : and if it does convince him, 
why, then, Sir, you are wrong, and he is right." 2 Bos- 
well, The Life of Johnson 47-48 (Hill ed. 1887). 

69 "The lawyer deciding whether to undertake a case 
must be able to judge objectively whether he is capable of 
handling it and whether he can assume its burdens without 
prejudice to previous commitments. . . ." Professional 
Responsibility: Report of the Joint Conference, 44 A.B. A.J. 
1158,1218(1958). 

7° "y| lc i aW yer must decline to conduct a civil cause or 
to make a defense when convinced that it is intended mere- 
ly to harass or to injure the opposite party or to work 
oppression or wrong." ABA Canon 30. 

71 See ABA Canon 7. 

72 Id. 

"From the facts stated we assume that the client has 
discharged the first attorney and given notice of the dis- 
charge. Such being the case, the second attorney may 
properly accept employment. Canon 7; Opinions 10, 130, 
149." ABA Opinion 209 (1941). 


XXVIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


EC 2-32 A decision by a lawyer to withdraw 
should be made only on the basis of compelling 
circumstances 73 , and in a matter pending before 
a tribunal he must comply with the rules of the 
tribunal regarding withdrawal. A lawyer should 
not withdraw without considering carefully and 
endeavoring to minimize the possible adverse ef- 
fect on the rights of his client and the possibility 
of prejudice to his client 74 as a result of his 
withdrawal. Even when he justifiably withdraws, 
a lawyer should protect the welfare of his client by 
giving due notice of his withdrawal: 75 suggesting 
employment of other counsel, delivering to the 
client all papers and property to which the client 
is entitled, cooperating with counsel subsequently 
employed, and otherwise endeavoring to minimize 
the possibility of harm. Further, he should refund 
to the client any compensation not earned during 
the employment:76 

DISCIPLINARY RULES 
DR 2-101 Publicity in General. 77 

(A) A lawyer shall not prepare, cause to be pre- 

pared, use, or participate in the use of, any 
form of public communication that contains 
professionally self-laudatory statements cal- 
culated to attract lay clients; as used herein, 
"public communication" includes, but is not 
limited to, communication by means of tele- 
vision, radio, motion picture, newspaper, mag- 
azine, or book. 

( B) A lawyer shall not publicize himself, his part- 

ner, or associate as a lawyer through news- 
paper or magazine advertisements, radio or 
television announcements, display advertise- 
ments in city or telephone directories, or other 
means of commercial publicity, 78 nor shall 
he authorize or permit others to do so in his 
behalf 79 except as permitted under DR 2-103. 

3 See ABA Canon 44. 

"I will carefully consider, before taking a case, whether 
it appears that I can fully represent the client within the 
framework of law. If the decision is in the affirmative, 
then it will take extreme circumstances to cause me to de- 
cide later that I cannot so represent him." Thode, The 
Ethical Standard for the Advocate , 39 Texas L.Rev. 575, 

592 (1961) (from "A Proper Oath for Advocates"). 

74 ABA Opinion 314 (1965) held that a lawyer should not 
disassociate himself from a cause when "it is obvious that 
the very act of disassociation would have the effect of vio- 
lating Canon 37." 

ABA Canon 44 enumerates instances in which "... 
the lawyer may be warranted in withdrawing on due no- 
tice to the client, allowing him time to employ another 
lawyer." 

76 See ABA Canon 44. 

77 Cf. ABA Canon 27; see generally ABA Opinion 293 
(1957). 

7 8 cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73 
(1932), 59 (1931), and 43 (1931). 

79 "There can be no justification for the participation 
and acquiescence by an attorney in the development and 
publication of an article which, on its face, plainly amounts 
to a self-interest and unethical presentation of his achieve- 

XXIX 


This does not prohibit limited and dignified 
identification of a lawyer as a lawyer as well 
as by name 99: 

(1) In political advertisements when his 
professional status is germane to the 
political campaign or to a political is- 
sue. 

(2) In public notices when the name and 
profession of a lawyer are required or 
authorized by law or are reasonably 
pertinent for a purpose other than the 
attraction of potential clients. si 

(3) In routine reports and announcements 
of a bona fide business, civic, profes- 
sional, or political organization in which 
he serves as a director or officer. 

(4) In and on legal documents prepared by 
him. 

(5) In and on legal textbooks, treatises, and 
other legal publications, and in dignified 
advertisements thereof. 

( C) A lawyer shall not compensate or give any 
thing of value to representatives of the press, 
radio, television, or other communication 
medium in anticipation of or in return for 
professional publicity in a news item. 82 

DR 2-102 Professional Notices, Letterheads, Of- 
fices, and Law Lists. 

(A) A lawyer or law firm shall not use profession- 
al cards, professional announcement cards, 

ments and capabilities." Matter of Connelly, 18 App.Div. 
2d 466, 478, 240 N.Y.S.2d 126, 138 (1963). 

"An announcement of the fact that the lawyer had re- 
signed and the name of the person to succeed him, or take 
over his work, would not be objectionable, either as an 
official communication to those employed by or connected 
with the administrative agency or instrumentality [that 
had employed him], or as a news release. 

"But to include therein a statement of the lawyer's ex- 
perience in and acquaintance with the various departments 
and agencies of the government, and a laudation of his 
legal ability, either generally or in a special branch of 
the law, is not only bad taste but ethically improper. 

"It can have but one primary purpose or object ; to aid 
the lawyer in securing professional employment in private 
practice by advertising his professional experience, attain- 
ments and ability." ABA Opinion 184 (1938). 

Cf. ABA Opinions 285 (1951) and 140 (1935). 

so "The question is always . . . whether under the 
circumstance the furtherance of the professional employ- 
ment of the lawyer is the primary purpose of the adver- 
tisement, or is merely a necessary incident of a proper and 
legitimate objective of the client which does not have the 
effect of unduly advertising him." ABA Opinion 290 (1956). 
See ABA Opinion 285 (1951). 

31 See ABA Opinions 299 (1961), 290 (1956), 158 (1936), 
and 100 (1933) ; cf. ABA Opinion 80 (1932). 

82 "Rule 2. 

"[A] member of the State Bar shall not solicit pro- 
fessional employment by . . 

"(4) The making of gifts to representatives of the 
press, radio, television or any medium of communica- 
tion in anticipation of or in return for publicity." 
Cal. Business and Professions Code § 6076 (West 1962). 



CODE OF PROFESSIONAL RESPONSIBILITY 


office signs, letterheads, telephone directory 
listings, law lists, legal directory listings, or 
similar professional notices or devices, 83 ex- 
cept that the following may be used if they 
are in dignified form: 

(1) A professional card of a lawyer identi- 
fying him by name and as a lawyer, 
and giving his addresses, telephone 
numbers, the name of his law firm, and 
any information permitted under DR 
2-105. A professional card of a law 
firm may also give the names of mem- 
bers and associates. Such cards may 
be used for identification S4 but may 
not be published in periodicals, maga- 
zines, newspapers, 85 or other media.86 

(2) A brief professional announcement card 

stating new or changed associations or 
addresses, change of firm name, or simi- 
lar matters pertaining to the profes- 
sional office of a lawyer or law firm, 
which may be mailed to lawyers, clients, 
former clients, personal friends, and 
relatives. 87 It shall not state bio- 
graphical data except to the extent rea- 
sonably necessary to identify the law- 
yer or to explain the change in his 
association, but it may state the im- 
mediate past position of the lawyer. 88 
It may give the names and dates of 
predecessor firms in a continuing line 
of succession. It shall not state the 
nature of the practice except as per- 
mitted under DR 2-105.89 

(3) A sign on or near the door of the office 

and in the building directory identifying 
the law office. The sign shall not state 
the nature of the practice, except as 
permitted under DR 2-105. 

(4) A letterhead of a lawyer identifying 
him by name and as a lawyer, and giv- 

83 Cf. ABA Opinions 233 (1941) and 114 (1934). 

84 See ABA Opinion 175 (1938). 

85 See ABA Opinions 260 (1944) and 182 (1938). 

86 But cf. ABA Opinions 276 (1947) and 256 (1943). 

87 See ABA Opinion 301 (1961). 

88 " [I] t has become commonplace for many lawyers to 
participate in government service ; to deny them the right, 
upon their return to private practice, to refer to their prior 
employment in a brief and dignified manner, would place 
an undue limitation upon a large element of our profes- 
sion. It is entirely proper for a member of the profession 
to explain his absence from private practice, where such 
is the primary purpose of the announcement, by a brief 
and dignified reference to the prior employment. 

dl " . [A]ny such announcement should be limited to 

the immediate past connection of the lawyer with the gov- 
ernment, made upon his leaving that position to enter pri- 
vate practice." ABA Opinion 301 (1961). 

89 See ABA Opinion 251 (1943). 

90 "Those lawyers who are working for an individual 
lawyer or a law firm may be designated on the letterhead 
and in other appropriate places as "associates'." ABA 
Opinion 310 (1963). 


ing his addresses, telephone numbers, 
the name of his law firm, associates, 
and any information permitted under 
DR 2-105. A letterhead of a law firm 
may also give the names of members 
and associates, 90 and names and dates 
relating to deceased and retired mem- 
bers 9 1 A lawyer may be designated 
"Of Counsel" on a letterhead if he has 
a continuing relationship with a law- 
yer or law firm, other than as a partner 
or associate. A lawyer or law firm 
may be designated as "General Coun- 
sel" or by similar professional refer- 
ence on stationery of a client if he or 
the firm devotes a substantial amount 
of professional, time in the representa- 
tion of that client. 92 The letterhead of 
a law firm may give the names and 
dates of predecessor firms in a con- 
tinuing line of succession. 

(5) A listing of the office of a lawyer 
or law firm in the alphabetical and 
classified sections of the telephone di- 
rectory or directories for the geographi- 
cal area or areas in which the lawyer 
resides or maintains offices or in which 
a significant part of his clientele re- 
sides 93 and in the city directory of the 
city in which his or the firm's office 
is located; 94 but the listing may give 
only the name of the lawyer or law 
firm, the fact he is a lawyer, addresses, 
and telephone numbers. 95 The listing 
shall not be in distinctive form 96 or 
type. 9 ' A law firm may have a listing 
in the firm name separate from that of 
its members and associates. 98 The list- 
ing in the classified section shall not 
be under a heading or classification 
other than "Attorneys" or "Lawyers", 99 

91 See ABA Canon 33. 

92 But see ABA Opinion 285 (1951). 

93 See ABA Opinion 295 (1959). 

94 But see ABA Opinion 313 (1964) which says the Com- 
mittee "approves a listing in the classified section of the 
city directory for lawyers only when the listing includes 
all lawyers residing in the community and when no charge 
is made therefor." 

95 "The listing should consist only of the lawyer's name, 
address and telephone number." ABA Opinion 313 (1964). 

90 "[AJdding to the regular classified listing a 'second 
line' in which a lawyer claims that he is engaged in a 
’specialty' is an undue attempt to make his name distinc- 
tive." ABA Opinion 284 (1951). 

97 "[Opinion 284] held that a lawyer could not with pro- 
priety have his name listed in distinctive type in a tele- 
phone directory or city directory. We affirm that opin- 
ion." ABA Opinion 313 (1964). 

See ABA Opinions 123 (1934) and 53 (1931). 

98 "[I]f a lawyer is a member of a law firm, both the 
firm, and the individual lawyer may be listed separately." 
ABA Opinion 313 (1964). 

99 See ABA Opinion 284 (1951). 


XXX 



CODE OF PROFESSIONAL RESPONSIBILITY 


except that additional headings or clas- 
sifications descriptive of the types of 
practice referred to in DR 2-105 are 
permitted. 100 

(6) A listing in a reputable law list 101 or 
legal directory giving brief biographical 
and other informative data. A law list 
or directory is not reputable if its 
management or contents are likely to 
be misleading or injurious to the public 
or to the profession. 102 A law list is 
conclusively established to be reputable 
if it is certified by the American Bar 
Association as being in compliance 
with its rules and standards. The pub- 
lished data may include only the follow- 
ing: name, including name of law firm 
and names of professional associates; 
addresses 103 and telephone numbers; 
one or more fields of law in which the 
lawyer or law firm concentrates; 104 a 
statement that practice is limited to one 
or more fields of law; a statement that 
the lawyer or law firm specializes in a 
particular field of law or law practice 
but only if authorized under DR 2-105 
(A) (4) ; 105 date and place of birth; 
date and place of admission to the bar 
of state and federal courts; schools 

100 See Silverman v. State Bar of Texas, 405 F.2d 410, (5th 
Cir. 1968) ; but see ABA Opinion 286 (1952). 

101 Cf. ABA Canon 43. 

102 Cf. ABA Opinion 255 (1943). 

103 "We are asked to define the word 'addresses' appear- 
ing in the second paragraph of Canon 27 . • • • 

"It is our opinion that an address (other than a cable 
address) within the intendment of the canon is that of the 
lawyer's office or of his residence. Neither address should 
be misleading. If, for example, an office address is given, 
it must be that of a bona fide office. The residence ad- 
dress, if given, should be identified as such if the city or 
other place of residence is not the same as that in which the 
law office is located." ABA Opinion 249 (1942). 

104 "[T]oday in various parts of the country Committees 
on Professional Ethics of local and state bar associations 
are authorizing lawyers to describe themselves in announce- 
ments to the Bar and in notices in legal periodicals and 
approved law lists as specialists in a great variety of things. 
Thus in the approved law lists or professional announce- 
ments there appear, in connection with the names of in- 
dividual practitioners or firms, such designations as ’In- 
ternational Law, Public and Private 1 ; 'Trial Preparation 
in Personal Injury and Negligence Actions' ; 'Philippine 
War Damage Claims' ; 'Anti-Trust' ; 'Domestic Relations’ ; 
'Tax Law' ; 'Negligence Law 1 . It would seem that the 
ABA has given at least its tacit approval to this sort of 
announcement. 

"It is important that this sort of description is not, in 
New York at least, permitted on letterheads or shingles or 
elsewhere in communications to laymen. This is subject 
to the single exception that such announcement to laymen 
is permitted in the four traditional specialties, Admiralty, 
Patent, Copyright and Trade-mark." R e P°rt of the Special 
Committee on Specialization and Specialized Legal Educa- 
tion, 79 A.B.A.Rep. 582, 586 (1954). 

105 This provision is included to conform to action taken 
by the ABA House of Delegates at the Mid-Winter Meet- 
ing, January, 1969. 


attended, with dates of graduation, de- 
grees, and other scholastic distinctions; 
public or quasi-public offices; military 
service; posts of honor; legal author- 
ships; legal teaching positions; mem- 
berships, offices, committee assign- 
ments, and section memberships in bar 
associations; memberships and offices 
in legal fraternities and legal societies; 
technical and professional associations 
and societies; foreign language ability; 
names and addresses of references, 106 
and, with their consent, names of clients 
regularly represented. 107 

( B) A lawyer in private practice shall not practice 
under a trade name, a name that is mislead- 
ing as to the identity of the lawyer or lawyers 
practicing under such name, or a firm name 
containing names other than those of one or 
more of the lawyers in the firm, except that 
the name of a professional corporation or pro- 
fessional association may contain "P.C." or 
"P.A." or similar symbols indicating the na- 
ture of the organization, and if otherwise law- 
ful a firm may use as, or continue to include 
in, its name, the name or names of one or 
more deceased or retired members of the 
firm or of a predecessor firm in a continuing 
line of succession. 108 A lawyer who assumes 
a judicial, legislative, or public executive or 
administrative post or office shall not permit 
his name to remain in the name of a law firm 
or to be used in professional notices of the 
firm during any significant period in which 
he is not actively and regularly practicing law 
as a member of the firm, 100 and during such 
period other members of the firm shall not 
use his name in the firm name or in profes- 
sional notices of the firm. 110 

106 See ABA Canon 43 and ABA Opinion 1 19 (1934) ; hut 
see ABA Opinion 236 (1941). 

107 See ABA Canon 27. 

ws See ABA Canon 33; cf. ABA Opinions 318 (1967), 267 
(1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6 
(1925). 

109 ABA Opinion 318 (1967) held, "anything to the con- 
trary in Formal Opinion 315 or in the other opinions cited 
notwithstanding" that : "Where a partner whose name 
appears in the name of a law firm is elected or appointed 
to high local, state or federal office, which office he in- 
tends to occupy only temporarily, at the end of which time 
he intends to return to his position with the firm, and 
provided that he is not precluded by holding such office 
from engaging in the practice of law and does not in fact 
sever his relationship with the firm but only takes a leave 
of absence, and provided that there is no local law, stat- 
ute or custom to the contrary, his name may be retained 
in the firm name during his term or terms of office, but 
only if proper precautions are taken not to mislead the 
public as to his degree of participation in the firm's af- 
fairs." 

Cf. ABA Opinion 143 (1935), New York County Opinion 
67, and New York City Opinions 36 and 798; hut cf. ABA 
Opinion 192 (1939) and Michigan Opinion 164. 

110 Cf. ABA Canon 33. 


XXXI 



CODE OF PROFESSIONAL RESPONSIBILITY 


(C) A lawyer shall not hold himself out as having 
a partnership with one or more other lawyers 
unless they are in fact partners. Ill 

(D) A partnership shall not be formed or con- 
tinued between or among lawyers licensed in 
different jurisdictions unless all enumerations 
of the members and associates of the firm on 
its letterhead and in other permissible listings 
make clear the jurisdictional limitations on 
those members and associates of the firm not 
licensed to practice in all listed jurisdic- 
tions; 112 however, the same firm name may 
be used in each jurisdiction. 

(E) A lawyer who is engaged both in the practice 
of law and another profession or business 
shall not so indicate on his letterhead, office 
sign, or professional card, nor shall he iden- 
tify himself as a lawyer in any publication in 
connection with his other profession or busi- 
ness. 

(F) Nothing contained herein shall prohibit a law- 
yer from using or permitting the use, in con- 
nection with his name, of an earned degree 
or title derived therefrom indicating his train- 
ing in the law. 

DR 2-103 Recommendation of Professional Em- 
ployment. 113 

(A) A lawyer shall not recommend employment, 
as a private practitioner, 114 of himself, his 
partner, or associate to a non-lawyer who has 
not sought his advice regarding employment 
of a lawyer. 115 

(B) Except as permitted under DR 2- 103(C), a 
lawyer shall not compensate or give anything 
of value to a person or organization to recom- 
mend or secure his employment 116 by a client, 
or as a reward for having made a recommen- 
dation resulting in his employment 1 1 7 by a 
client. 

in See ABA Opinion 277 (1948) ; cf. ABA Canon 33 and 
ABA Opinions 318 (1967), 126 (1935), 115 (1934), and 106 
(1934). 

in See ABA Opinions 318 (1967) and 316 (1967) ; cf. ABA 
Canon 33. 

U3 Cf. ABA Canons 27 and 28. 

114 "We think it clear that a lawyer's seeking employ- 
ment in an ordinary law office, or appointment to a civil 
service position, is not prohibited by . . . [Canon 27]." 
ABA Opinion 197 (1939). 

115 "[A] lawyer may not seek from persons not his clients 
the opportunity to perform ... a [legal] check-up." 
ABA Opinion 307 (1962). 

U6 Cf. ABA Opinion 78 (1932). 

117 " No financial connection of any kind between the 
Brotherhood and any lawyer is permissible. No lawyer 
can properly pay any amount whatsoever to the Brother- 
hood or any of its departments, officers or members as 
compensation, reimbursement of expenses or gratuity in 
connection with the procurement of a case.' " In re 
Brotherhood of R. R. Trainmen, 13 111. 2d 391, 398, 150 N.E. 
2d 163, 167 (1958), quoted in in re Ratner, 194 Kan 362, 
372, 399 P.2d 865, 873 (1965). 

See ABA Opinion 147 (1935). 


(C) A lawyer shall not request a person or organ- 
ization to recommend employment, as a pri- 
vate practitioner, of himself, his partner, or 
associate, 118 except that he may request re- 
ferrals from a lawyer referral service operat- 
ed, sponsored, or approved by a bar associa- 
tion representative of the general bar of the 
geographical area in which the association 
exists and may pay its fees incident there- 
to. 119 

(D) A lawyer shall not knowingly assist a person 
or organization that recommends, furnishes, 
or pays for legal services to promote the use 
of his services or those of his partners or as- 
sociates. However, he may cooperate in a dig- 
nified manner with the legal service activities 
of any of the following, provided that his in- 
dependent professional judgment is exercised 


in behalf of his client without interference or 
control by any organization or other person: 

(1) A legal aid office or public defender 


office : 

(a) 

Operated or sponsored by a duly 
accredited law school. 

(b) 

Operated or sponsored by a bona 
fide non-profit community or- 
ganization. 

(a) 

Operated or sponsored by a gov- 
ernmental agency. 

(d) 

Operated, sponsored, or approved 
by a bar association representa- 
tive of the general bar of the geo- 
graphical area in which the as- 
sociation exists. 120 


(2) A military legal assistance office. 

(3) A lawyer referral service operated, 
sponsored, or approved by a bar asso- 
ciation representative of the general 
bar of the geographical area in which 
the association exists. 121 

(4) A bar association representative of the 

general bar of the geographical area in 
which the association exists. 122 

118 "This Court has condemned the practice of ambu- 
lance chasing through the media of runners and touters. 
In similar fashion we have with equal emphasis condemned 
the practice of direct solicitation by a lawyer. We have 
classified both offenses as serious breaches of the Canons 
of Ethics demanding severe treatment of the offending 
lawyer." State v. Dawson, 111 So. 2d 427, 431 (Fla. 1959). 

119 "Registrants [of a lawyer referral plan] may be re- 
quired to contribute to the expense of operating it by a 
reasonable registration charge or by a reasonable percent- 
age of fees collected by them." ABA Opinion 291 (1956). 

Cf. ABA Opinion 227 (1941). 

120 Cf. ABA Opinion 148 (1935). 

121 Cf. ABA Opinion 227 (1941). 

122 "If a bar association has embarked on a program of 
institutional advertising for an annual legal check-up and 
provides brochures and reprints, it is not improper to have 
these available in the lawyer's office for persons to read 
and take." ABA Opinion 307 (1962). 

Cf. ABA Opinion 121 (1934). 


XXXII 



CODE OF PROFESSIONAL RESPONSIBILITY 


(5) Any other non-profit organization that 
recommends, furnishes, or pays for le- 
gal services to its members or bene- 
ficiaries, but only in those instances and 
to the extent that controlling constitu- 
tional interpretation at the time of the 
rendition of the services requires the 
allowance of such legal service activi- 
ties,' 23 and only if the following condi- 
tions, unless prohibited by such inter- 
pretation, are met: 

(a) The primary purposes of such 
organization do not include the 
rendition of legal services. 

(b) The recommending, furnishing, 
or paying for legal services to its 
members is incidental and rea- 
sonably related to the primary 
purposes of such organization. 

(c) Such organization does not derive 
a financial benefit from the ren- 
dition of legal services by the 
lawyer. 

(d) The member or beneficiary for 
whom the legal services are ren- 
dered, and not such organization, 
is recognized as the client of the 
lawyer in that matter. 

( E) A lawyer shall not accept employment when 
he knows or it is obvious that the person who 
seeks his services does so as a result of con- 
duct prohibited under this Disciplinary Rule. 

DR 2-104 Suggestion of Need of Legal Serv- 
ices. 124 

( A) A lawyer who has given unsolicited advice to 
a layman that he should obtain counsel or 
take legal action shall not accept employment 
resulting from that advice, 125 except that: 

(1) A lawyer may accept employment by 
a close friend, relative, former client 
(if the advice is germane to the former 
employment), or one whom the lawyer 
reasonably believes to be a client. 126 

(2) A lawyer may accept employment that 
results from his participation in activi- 
ties designed to educate laymen to rec- 

123 United Mine Workers v. 111. State Bar Ass'n, 389 U.S. 
217, 19 L.Ed.2d 426, 88 S.Ct. 353 (1967) ; Brotherhood of 

R. R. Trainmen v. Virginia, 371 U.S. 1, 12 L.Ed.2d 89, 84 

S. Ct. 1113 (1964) ; NAACP v. Button, 371 U.S. 415, 9 L. 
Ed. 2d 405, 83 S.Ct. 328 (1963). 

124 ABA Canon 28. 

I 23 Cf. ABA Opinions 229 (1941) and 173 (1937). 

126 "it certainly is not improper for a lawyer to advise 
his regular clients of new statutes, court decisions, and 
administrative rulings, which may affect the client's in- 
terests, provided the communication is strictly limited to 
such information. . 

"When such communications go to concerns or indi- 
viduals other than regular clients of the lawyer, they are 
thinly disguised advertisements for professional employ- 
ment, and are obviously improper." ABA Opinion 213 
(1941). 

"It is our opinion that where the lawyer has no reason 
to believe that he has been supplanted by another lawyer, 
it is not only his right, but it might even be his duty to 


ognize legal problems, to make intell 1 

available legal services if such activities 
are conducted or sponsored by any of 
the offices or organizations enumerated 
in DR 2-103(D) (1) through (5), to the 
extent and tinder the conditions pre- 
scribed therein. 

( 3 ) A lawyer wno is furnished or paid by 
any of the offices or organizations 
enumerated in DR 2- 103(D) (1), (2), or 
(5) may represent a member or bene- 
ficiary thereof, to the extent and under 
the conditions prescribed therein. 

(4) Without affecting his right to accept 
employment, a lawyer may speak pub- 
licly or write for publication on legal 
topics 127 so long as he does not em- 
phasize his own professional experience 
or reputation and does not undertake 
to give individual advice. 

(5) If success in asserting rights or defens- 
es of his client in litigation in the nature 
of a class action is dependent upon the 
joinder of others, a lawyer may accept, 
but shall not seek, employment from 
those contacted for the purpose of ob- 
taining their joinder. 128 

DR 2-105 Limitation of Practice. 129 

(A) A lawyer shall not hold himself out publicly 
as a specialist 130 or as limiting his practice, 131 
except as permitted under DR 2- 102(A) (6) 
or as follows: 

(1) A lawyer admitted to practice before the 
United States Patent Office may use 
the designation "Patents," "Patent At- 
torney," or "Patent Lawyer," or any 
combination of those terms, on his let- 
terhead and office sign. A lawyer en- 
gaged in the trademark practice may 
use the designation "Trademarks," 
"Trademark Attorney," or "Trademark 
Lawyer," or any combination of those 
terms, on his letterhead and office sign, 
and a lawyer engaged in the admiralty 
practice may use the designation "Ad- 
miralty," "Proctor in Admiralty," or 
"Admiralty Lawyer," or any combina- 
tion of those terms, on his letterhead 
and office sign. 132 

advise his client of any change of fact or law which might 
defeat the client's testamentaiy purpose as expressed in the 
will 

"Periodic notices might be sent to the client for whom 
a lawyer has drawn a will, suggesting that it might be wise 
for the client to reexamine his will to determine whether 
or not there has been any change in his situation requir- 
ing a modification of his will." ABA Opinion 210 (1941). 

Cf. ABA Canon 28. 

127 Cf. ABA Opinion 168 (1937). 

128 But cf. ABA Opinion 111 (1934). 

129 See ABA Canon 45; cf. ABA Canons 27, 43, and 46. 

130 Cf. ABA Opinions 228 (1941) and 194 (1939). 

131 See ABA Opinions 251 (1943) and 175 (1938). 

132 See ABA Canon 27; cf. ABA Opinion 286 (1952). 


Black's Law Dictionary 4th Ed. Rev.-c 


XXXIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


(2) A lawyer may permit his name to be 
listed in lawyer referral service offices 
according to the fields of law in which 
he will accept referrals. 

(3) A lawyer available to act as a consult- 
ant to or as an associate of other law- 
yers in a particular branch of law or 
legal service may distribute to other 
lawyers and publish in legal journals a 
dignified announcement of such avail- 
ability, 133 but the announcement shall 
not contain a representation of special 
competence or experience. 134 The an- 
nouncement shall not be distributed to 
lawyers more frequently than once in a 
calendar year, but it may be published 
periodically in legal journals. 

(4) A lawyer who is certified as a specialist 
in a particular field of law or law prac- 
tice by the authority having jurisdiction 
under state law over the subject of 
specialization by lawyers may hold him- 
self out as such specialist but only in 
accordance with the rules prescribed by 
that authority. 135 

DR 2-106 Fees for Legal Services. 136 

(A) A lawyer shall not enter into an agreement 

for, charge, or collect an illegal or clearly ex- 
cessive fee. 137 

(B) A fee is clearly excessive when, after a review 

of the facts, a lawyer of ordinary prudence 
would be left with a definite and firm convic- 
tion that the fee is in excess of a reasonable 
fee. Factors to be considered as guides in de- 
termining the reasonableness of a fee include 
the following: 

(1) The time and labor required, the novel- 
ty and difficulty of the questions in- 
volved, and the skill requisite to per- 
form the legal service properly. 

(2) The likelihood, if apparent to the client, 
that the acceptance of the particular 
employment will preclude other em- 
ployment by the lawyer. 

(3) The fee customarily charged in the lo- 
cality for similar legal services. 

133 Cf. ABA Opinion 194 (1939). 

134 See ABA Canon 46. 

135 This provision is included to conform to action taken 
by the ABA House of Delegates at the Mid-Winter Meeting, 
January, 1969. 

136 See ABA Canon 12. 

137 The charging of a "clearly excessive fee" is a ground 
for discipline. State ex rel. Nebraska State Bar Ass'n. v. 
Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957). 

"An attorney has the right to contract for any fee he 
chooses so long as it is not excessive (see Opinion 190), 
and this Committee is not concerned with the amount of 
such fees unless so excessive as to constitute a misappro- 
priation of the client's funds (see Opinion 27)." ABA 
Opinion 320 (1968). 

Cf. ABA Opinions 2 09 (1940), 190 (1939), and 27 (1930) 
and State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla. 1966). 


(4) The amount involved and the results ob- 
tained. 

(5) The time limitations imposed by the 
client or by the circumstances. 

(6) The nature and length of the profes- 
sional relationship with the client. 

(7) The experience, reputation, and ability 
of the lawyer or lawyers performing 
the services. 

(8) Whether the fee is fixed or contin- 
gent. 138 

( C) A lawyer shall not enter into an arrangement 
for, charge, or collect a contingent fee for rep- 
resenting a defendant in a criminal case. 139 

DR 2-107 Division of Fees Among Lawyers. 

(A) A lawyer shall not divide a fee for legal serv- 
ices with another lawyer who is not a partner 
in or associate of his law firm or law office, 
unless: 

(1) The client consents to employment of 
the other lawyer after a full disclosure 
that a division of fees will be made. 

(2) The division is made in proportion to 
the services performed and responsibili- 
ty assumed by each. 140 

(3) The total fee of the lawyers does not 
clearly exceed reasonable compensation 
for all legal services they rendered the 
client. 141 

138 Cf. ABA Canon 13; see generally MacKinnon, Con- 
tingent Fees for Legal Services (1964) (A Report of the 
American Bar Foundation). 

139 "Contingent fees, whether in civil or criminal cases, 
are a special concern of the law. . 

"In criminal cases, the rule is stricter because of the 
danger of corrupting justice. The second part of Section 
542 of the Restatement [of Contracts] reads : 'A bargain 
to conduct a criminal case ... in consideration of a 
promise of a fee contingent on success is illegal. . . . 
Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959). 

"The third area of practice in which the use of the con- 
tingent fee is generally considered to be prohibited is the 
prosecution and defense of criminal cases. However, there 
are so few cases, and these are predominantly old, that 
it is doubtful that there can be said to be any current law 
on the subject. ... In the absence of cases on the 
validity of contingent fees for defense attorneys, it is 
necessary to rely on the consensus among commentators 
that such a fee is void as against public policy. The nature 
of criminal practice itself makes unlikely the use of con- 
tingent fee contracts." MacKinnon, Contingent Fees for 
Legal Services 52 (1964) (A Report of the American Bar 
Foundation). 

140 See ABA Canon 34 and ABA Opinions 316 (1967) and 
294 (1958) ; see generally ABA Opinions 265 (1945), 204 
(1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63 
(1932), 28 (1930), 27 (1930), and 18 (1930). 

141 "Canon 12 contemplates that a lawyer's fee should 
not exceed the value of the services rendered. . 

"Canon 12 applies, whether joint or separate fees ari 
charged [by associate attorneys] . . .." ABA Opinion 
204 (1940). 


XXXIV 



CODE OF PROFESSIONAL RESPONSIBILITY 


(B) This Disciplinary Rule does not prohibit pay- 
ment to a former partner or associate pur- 
suant to a separation or retirement agree- 
ment. 


DR 2-108 Agreements Restricting the Practice of 
a Lawyer. 

(A) A lawyer shall not be a party to or participate 
in a partnership or employment agreement 
with another lawyer that restricts the right 
of a lawyer to practice law after the termina- 
tion of a relationship created by the agree- 
ment, except as a condition to payment of 
retirement benefits. 142 

(B) In connection with the settlement of a con- 
troversy or suit, a lawyer shall not enter into 
an agreement that restricts his right to prac- 
tice law. 


DR 2-109 Acceptance of Employment. 

( A) A lawyer shall not accept employment on be- 
half of a person if he knows or it is obvious 
that such person wishes to: 

(1) Bring a legal action, conduct a defense, 
or assert a position in litigation, or 
otherwise have steps taken for him, 
merely for the purpose of harassing or 
maliciously injuring any person. 143 

(2) Present a claim or defense in litigation 
that is not warranted under existing 
law, unless it can be supported by good 
faith argument for an extension, modi- 
fication, or reversal of existing law. 

DR 2-1 10 Withdrawal from Employment. 144 
(A) In General. 

(1) If permission for withdrawal from em- 

ployment is required by the rules of a 
tribunal, a lawyer shall not withdraw 
from employment in a proceeding be- 
fore that tribunal without its permis- 
sion. 

(2) In any event, a lawyer shall not with- 
draw from employment until he has 

142 "[A] general covenant restricting an employed law- 
yer, after leaving the employment, from practicing in the 
community for a stated period, appears to this Committee 
to be an unwarranted restriction on the right of a lawyer 
to choose where he will practice and inconsistent with our 
professional status. Accordingly, the Committee is of the 
opinion it would be improper for the employing lawyer to 
require the covenant and likewise for the employed lawyer 
to agree to it." ABA Opinion 300 (1961). 

143 See ABA Canon 30. 

"Rrcle 13. . . .A member of the State Bar shall not 
accept employment to prosecute or defend a case solely 
out of spite, or solely for the purpose of harassing or de- 
laying another . . ..” Cal. Business and Professions 
Code 6067 (West 1962). 

144 Cf. ABA Canon 44. 


taken reasonable steps to avoid fore- 
seeable prejudice to the rights of his 
client, including giving due notice to 
his client, allowing time for employ- 
ment of other counsel, delivering to the 
client all papers and property to which 
the client is entitled, and complying 
with applicable laws and rules. 

(3) A lawyer who withdraws from employ- 
ment shall refund promptly any part 
of a fee paid in advance that has not 
been earned. 

( B) Mandatory withdrawal. 

A lawyer representing a client before a 
tribunal, with its permission if required by its 
rules, shall withdraw from employment, and 
a lawyer representing a client in other matters 
shall withdraw from employment, if: 

(1) He knows or it is obvious that his client 
is bringing the legal action, conducting 
the defense, or asserting a position in 
the litigation, or is otherwise having 
steps taken for him, merely for the pur- 
pose of harassing or maliciously injur- 
ing any person. 

(2) He knows or it is obvious that his con- 
tinued employment will result in viola- 
tion of a Disciplinary Rule. 145 

(3) His mental or physical condition ren- 
ders it unreasonably difficult for him 
to carry out the employment effective- 
ly- 

(4) He is discharged by his client. 

(C) Permissive withdrawal. 146 

If DR 2-1 10(B) is not applicable, a lawyer 
may not request permission to withdraw in 
matters pending before a tribunal, and may 
not withdraw in other matters, unless such 
request or such withdrawal is because: 

(1) His client: 

(a) Insists upon presenting a claim 
or defense that is not warranted 
under existing law and cannot be 
supported by good faith argument 
for an extension, modification, or 
reversal of existing law. 147 

(b) Personally seeks to pursue an il- 
legal course of conduct. 

(c) Insists that the lawyer pursue a 
course of conduct that is illegal 
or that is prohibited under the 
Disciplinary Rules. 

(d) By other conduct renders it un- 
reasonably difficult for the law- 

145 See also Code of Professional Responsibility, DR 5- 
102 and DR 5-105. 

146 Cf. ABA Canon 4. 

147 Cf. Anders v. California, 386 U.S. 738, 18 L.Ed.2d 
493, 87 S.Ct. 1396 (1967), rehearing denied, 388 U.S. 924, 
18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967). 


XXXV 



CODE OF PROFESSIONAL RESPONSIBILITY 


yer to carry out his employment 
effectively. 

(e) Insists, in a matter not pending 
before a tribunal, that the lawyer 
engage in conduct that is contraiy 
to the judgment and advice of the 
lawyer but not prohibited under 
the Disciplinary Rules. 

(f) Deliberately disregards an agree- 
ment or obligation to the lawyer 
as to expenses or fees. 

His continued employment is likely to 
result in a violation of a Disciplinary 
Rule. 

His inability to work with co-counsel in- 
dicates that the best interests of the 
client likely will be served by with- 
drawal. 

His mental or physical condition ren- 
ders it difficult for him to carry out the 
employment effectively. 

His client knowingly and freely assents 
to termination of his employment. 

He believes in good faith, in a proceed- 
ing pending before a tribunal, that the 
tribunal will find the existence of other 
good cause for withdrawal. 

CANON 3 

A Lawyer Should Assist in Preventing the 
Unauthorized Practice of Law 
ETHICAL CONSIDERATIONS 

EC 3- 1 The prohibition against the practice of 
law by a layman is grounded in the need of the 
public for integrity and competence of those who 
undertake to render legal services. Because of the 
fiduciary and personal character of the lawyer- 
client relationship and the inherently complex na- 
ture of our legal system, the public can better be 
assured of the requisite responsibility and com- 
petence if the practice of law is confined to those 
who are subject to the requirements and regula- 
tions imposed upon members of the legal profes- 
sion. 

EC 3-2 The sensitive variations in the considera- 
tions that bear on legal determinations often make 
it difficult even for a lawyer to exercise appro- 
priate professional judgment, and it is therefore 
essential that the personal nature of the relation- 
ship of client and lawyer be preserved. Competent 
professional judgment is the product of a trained 
familiarity with law and legal processes, a dis- 
ciplined, analytical approach to legal problems, and 
a firm ethical commitment. 

EC 3-3 A non-lawyer who undertakes to handle 
legal matters is not governed as to integrity or 
legal competence by the same rules that govern 
the conduct of a lawyer. A lawyer is not only 
subject to that regulation but also is committed to 
high standards of ethical conduct. The public in- 
terest is best served in legal matters by a regulated 


profession committed to such standards.' The 
Disciplinary Rules protect the public in that they 
prohibit a lawyer from seeking employment by im- 
proper overtures, from acting in cases of divided 
loyalties, and from submitting to the control of 
others in the exercise of his judgment. Moreover, 
a person who entrusts legal matters to a lawyer 
is protected by the attorney-client privilege and 
by the duty of the lawyer to hold inviolate the 
confidences and secrets of his client. 

EC 3-4 A layman who seeks legal services often 
is not in a position to judge whether he will re- 
ceive proper professional attention. The entrust- 
ment of a legal matter may well involve the con- 
fidences, the reputation, the property, the freedom, 
or even the life of the client. Proper protection 
of members of the public demands that no person 
be permitted to act in the confidential and demand- 
ing capacity of a lawyer unless he is subject to the 
regulations of the legal profession. 

EC 3-5 It is neither necessary nor desirable to 
attempt the formulation of a single, specific defi- 
nition of what constitutes the practice of law. 2 
Functionally, the practice of law relates to the 
rendition of services for others that call for the 
professional judgment of a lawyer. The essence 
of the professional judgment of the lawyer is his 
educated ability to relate the general body and 
philosophy of law to a specific legal problem of a 
client; and thus, the public interest will be better 
served if only lawyers are permitted to act in mat- 
ters involving professional judgment. Where this 
professional judgment is not involved, non-lawyers, 
such as court clerks, police officers, abstracters, 
and many governmental employees, may engage 
in occupations that require a special knowledge of 
law in certain areas. But the services of a lawyer 
are essential in the public interest whenever the 
exercise of professional legal judgment is required. 

EC 3-6 A lawyer often delegates tasks to clerks, 
secretaries, and other lay persons. Such delegation 
is proper if the lawyer maintains a direct relation- 
ship with his client, supervises the delegated work, 
and has complete professional responsibility for 
the work product. 3 This delegation enables a law- 

1 "The condemnation of the unauthorized practice of law 
is designed to protect the public from legal services by 
persons unskilled in the law. The prohibition of lay in- 
termediaries is intended to insure the loyalty of the law- 
yer to the client unimpaired by intervening and possibly 
conflicting interests." Cheatham, Availability of Legal 
Services: The Responsibility of the Individual Lawyer 
and of the Organized Bar , 12 U.C.L.A.L.Rev. 438, 439 
(1965). 

2 "What constitutes unauthorized practice of the law in 
a particular jurisdiction is a matter for determination by 
the courts of that jurisdiction." ABA Opinion 198 (1939). 

"In the light of the historical development of the law- 
yer's functions, it is impossible to lay down an exhaustive 
definition of 'the practice of law' by attempting to enu- 
merate every conceivable act performed by lawyers in the 
normal course of their work." State Bar of Arizona v. 
Arizona Land Title & Trust Co., 90 Ariz. 76, 87, 366 P.2d 
1, 8-9 (1961), modified, 91 Ariz. 293, 371 P.2d 1020 (1962). 

3 "A lawyer can employ lay secretaries, lay investigators, 
lay detectives, lay researchers, accountants, lay scriveners, 


XXXVI 



CODE OF PROFESSIONAL RESPONSIBILITY 


yer to render legal service more economically and 
efficiently. 

EC 3-7 The prohibition against a non-lawyer 
practicing law does not prevent a layman from 
representing himself, for then he is ordinarily ex- 
posing only himself to possible injury. The pur- 
pose of the legal profession is to make educated 
legal representation available to the public; but 
anyone who does not wish to avail himself of such 
representation is not required to do so. Even so, 
the legal profession should help members of the 
public to recognize legal problems and to under- 
stand why it may be unwise for them to act for 
themselves in matters having legal consequences. 

EC 3-8 Since a lawyer should not aid or en- 
courage a layman to practice law, he should not 
practice law in association with a layman or other- 
wise share legal fees with a layman. 4 This does 
not mean, however, that the pecuniary value of the 
interest of a deceased lawyer in his firm or prac- 
tice may not be paid to his estate or specified per- 
sons such as his widow or heirs. 5 In like manner, 

nonlawyer draftsmen or nonlawyer researchers. In fact, 
he may employ nonlawyers to do any task for him except 
counsel clients about law matters, engage directly in the 
practice of law, appear in court or appear in formal pro- 
ceedings a part of the judicial process, so long as it is he 
who takes the work and vouches for it to the client and 
becomes responsible to the client." ABA Opinion 316 
(1967). 

ABA Opinion 316 (1967) also stated that if a lawyer prac- 
tices law as part of a law firm which includes lawyers 
from several states, he may delegate tasks to firm mem- 
bers in other states so long as he "is the person who, on 
behalf of the firm, vouched for the work of all of the oth- 
ers and, with the client and in the courts, did the legal acts 
defined by that state as the practice of law." 

"A lawyer cannot delegate his professional responsibility 
to a law student employed in his office. He may avail 
himself of the assistance of the student in many of the 
fields of the lawyer's work, such as examination of case 
law, finding and interviewing witnesses, making collections 
of claims, examining court records, delivering papers, 
conveying important messages, and other similar matters. 
But the student is not permitted, until he is admitted to 
the Bar, to perform the professional functions of a lawyer, 
such as conducting court trials, giving professional advice 
to clients or drawing legal documents for them. The stu- 
dent in all his work must act as agent for the lawyer em- 
ploying him, who must supervise his work and be responsi- 
ble for his good conduct." ABA Opinion 85 (1932). 

4 "No division of fees for legal services is proper, ex- 
cept with another lawyer . . .." ABA Canon 34. Oth- 
erwise, according to ABA Opinion 316 (1967), "[t]he Can- 
ons of Ethics do not examine into the method by which 
such persons are remunerated by the lawyer. . . . They 
may be paid a salary, a per diem charge, a flat fee, a con- 
tract price, etc." 

See ABA Canons 33 and 47. 

5 "Many partnership agreements provide that the active 

partners, on the death of any one of them, are to make 

payments to the estate or to the nominee of a deceased part- 

ner on a pre-determined formula. It is only where the 
effect of such an arrangement is to make the estate or 
nominee a member of the partnership along with the sur- 
viving partners that it is prohibited by Canon 34. Where 
the payments are made in accordance with a pre-existing 
agreement entered into by the deceased partner during his 
lifetime and providing for a fixed method for determining 


profit-sharing retirement plans of a lawyer or law 
firm which include non-lawyer office employees 
are not improper. 6 * These limited exceptions to 
the rule against sharing legal fees with laymen are 
permissible since they do not aid or encourage 
laymen to practice law. 

EC 3-9 Regulation of the practice of law is ac- 
complished principally by the respective states.? 
Authority to engage in the practice of law con- 
ferred in any jurisdiction is not per se a grant of 
the right to practice elsewhere, and it is improper 
for a lawyer to engage in practice where he is 
not permitted by law or by court order to do so. 
However, the demands of business and the mobility 
of our society pose distinct problems in the regula- 
tion of the practice of law by the states. 8 In fur- 
therance of the public interest, the legal profession 
should discourage regulation that unreasonably im- 
poses territorial limitations upon the right of a 
lawyer to handle the legal affairs of his client or 
upon the opportunity of a client to obtain the serv- 
ices of a lawyer of his choice in all matters includ- 
ing the presentation of a contested matter in a 
tribunal before which the lawyer is not permanent- 
ly admitted to practice. 9 

their amount based upon the value of services rendered 
during the partner's lifetime and providing for a fixed 
period over which the payments are to be made, this is 
not the case. Under these circumstances, whether the pay- 
ments are considered to be delayed payment of compensa- 
tion earned but withheld during the partner's lifetime, or 
whether they are considered to be an approximation of his 
interest in matters pending at the time of his death, is im- 
material. In either event, as Henry S. Drinker says in his 
book, Legal Ethics, at page 189: 'It would seem, however, 
that a reasonable agreement to pay the estate a proportion 
of the receipts for a reasonable period is a proper practical 
settlement for the lawyer's services to his retirement or 
death.' " ABA Opinion 308 (1963). 

6 Cf. ABA Opinion 311 (1964). 

7 "That the States have broad potuer to regulate the 
practice of law is, of course, beyond question." United 
Mine Workers v. 111. State Bar Ass’n, 389 U.S. 217, 222 
(1967). 

"It is a matter of law, not of ethics, as to where an in- 
dividual may practice law. Each state has its own rules." 
ABA Opinion 316 (1967). 

8 "Much of clients' business crosses state lines. People 
are mobile, moving from state to state. Many metro- 
politan areas cross state lines. It is common today to 
have a single economic and social community involving 
more than one state. The business of a single client may 
involve legal problems in several states." ABA Opinion 
316 (1967). 

9 " [W] e reaffirmed the general principle that legal serv- 
ices to New Jersey residents with respect to New Jersey 
matters may ordinarily be furnished only by New Jersey 
counsel ; but we pointed out that there may be multistate 
transactions where strict adherence to this thesis would not 
be in the public interest and that, under the circumstances, 
it would have been not only more costly to the client but 
also 'grossly impractical and inefficient' to have had the 
settlement negotiations conducted by separate lawyers from 
different states." In re Estate of Waring, 47 N.J. 367, 


376, 221 A.2d 193, 197 (1966). 
Cf. ABA Opinion 316 (1967). 

XXXVII 



CODE OF PROFESSIONAL RESPONSIBILITY 


DISCIPLINARY RULES 

DR 3-101 Aiding Unauthorized Practice of Law. 10 

(A) A lawyer shall not aid a non-lawyer in the un- 
authorized practice of law. 1 1 

(B) A lawyer shall not practice law in a jurisdic- 
tion where to do so would be in violation of 
regulations of the profession in that jurisdic- 
tion. 12 

DR 3-102 Dividing Legal Fees with a Non-Law- 
yer. 

(A) A lawyer or law firm shall not share legal fees 
with a non-lawyer, 13 except that: 

(1) An agreement by a lawyer with his 
firm, partner, or associate may provide 
for the payment of money, over a rea- 
sonable period of time after his death, 
to his estate or to one or more specified 
persons. 14 

(2) A lawyer who undertakes to complete 
unfinished legal business of a deceased 
lawyer may pay to the estate of the de- 
ceased lawyer that proportion of the 
total compensation which fairly repre- 
sents the services rendered by the de- 
ceased lawyer. 

(3) A lawyer or law firm may include non- 
lawyer employees in a retirement plan, 
even though the plan is based in whole 
or in part on a profit-sharing arrange- 
ment. 15 

DR 3-103 Forming a Partnership with a Non- 
Lawyer. 

(A) A lawyer shall not form a partnership with 
a non-lawyer if any of the activities of the 
partnership consist of the practice of law. 16 

10 Conduct permitted by the Disciplinary Rules of Can- 
ons 2 and 5 does not violate DR 3-101. 

11 See ABA Canon 47. 

12 It should be noted, however, that a lawyer may en- 
gage in conduct, otherwise prohibited by this Disciplinary 
Rule, where such conduct is authorized by preemptive fed- 
eral legislation. See Sperry v. Florida, 373 U.S. 379, 10 
L.Ed.2d 428, 83 S.Ct. 1322 (1963). 

13 See ABA Canon 34 and ABA Opinions 316 (1967), 180 
(1938), and 48 (1931). 

"The receiving attorney shall not under any guise or 
form share his fee for legal services with a lay agency, 
personal or corporate, without prejudice, however, to the 
right of the lay forwarder to charge and collect from the, 
creditor proper compensation for non-legal services ren- 
dered by the law [sic] forwarder which are separate and 
apart from the services performed by the receiving at- 
torney." ABA Opinion 294 (1958). 

14 See ABA Opinions 309 (1963) and 266 (1945). 
is Of. ABA Opinion 311 (1964). 

15 See ABA Canon 33; cf. ABA Opinions 239 (1942) and 
201 (1940). 

ABA Opinion 316 (1967) states that lawyers licensed in 
different jurisdictions may, under certain conditions, en- 
ter "into an arrangement for the practice of law" and 
that a lawyer licensed in State A is not, for such purpose, 
a layman in State B. 


CANON 4 

A Lawyer Should Preserve the Confidences 
and Secrets of a Client 

ETHICAL CONSIDERATIONS 

EC 4- 1 Both the fiduciary relationship existing 
between lawyer and client and the proper function- 
ing of the legal system require the preservation 
by the lawyer of confidences and secrets of one 
who has employed or sought to employ him. 1 A. 
client must feel free to discuss whatever he wishes 
with his lawyer and a lawyer must be equally free 
to obtain information beyond that volunteered by 
his client. 2 A lawyer should be fully informed of 
all the facts of the matter he is handling in order 
for his client to obtain the full advantage of our 
legal system. It is for the lawyer in the exercise 
of his independent professional judgment to sepa- 
rate the relevant and important from the irrelevant 
and unimportant. The observance of the ethical 
obligation of a lawyer to hold inviolate the con- 
fidences and secrets of his client not only facili- 
tates the full development of facts essential to 
proper representation of the client but also en- 
courages laymen to seek early legal assistance. 

EC 4-2 The obligation to protect confidences and 
secrets obviously does not preclude a lawyer from 
revealing information when his client consents 

1 See ABA Canons 6 and 37 and ABA Opinion 287 (1953). 

"The reason underlying the rule with respect to confi- 
dential communications between attorney and client is 
well stated in Mecham on Agency, 2d Ed., Vol. 2, § 2297, 
as follows : 'The purposes and necessities of the relation 
between a client and his attorney require, in many cases, 
on the part of the client, the fullest and freest disclosures 
to the attorney of the client's objects, motives and acts. 
This disclosure is made in the strictest confidence, rely- 
ing upon the attorney's honor and fidelity. To permit the 
attorney to reveal to others what is so disclosed, would be 
not only a gross violation of a sacred trust upon his 
part, but it would utterly destroy and prevent the use- 
fulness and benefits to be derived from professional assist- 
ance. Based upon considerations of public policy, there- 
fore, the law wisely declares that all confidential com- 
munications and disclosures, made by a client to his legal 
adviser for the purpose of obtaining his professional aid 
or advice, shall be strictly privileged ; — that the attorney 
shall not be permitted, without the consent of his client, — 
and much less will he be compelled — to reveal or disclose 
communications made to him under such circumstances.' " 
ABA Opinion 250 (1943). 

"While it is true that complete revelation of relevant 
facts should be encouraged for trial purposes, nevertheless 
an attorney's dealings with his client, if both are sin- 
cere, and if the dealings involve more than mere technical 
matters, should be immune to discovery proceedings. 
There must be freedom from fear of revealment of mat- 
ters disclosed to an attorney because of the peculiarly 
intimate relationship existing." Ellis-Foster Co. v. Union 
Carbide & Carbon Corp., 159 F.Supp. 917, 919 (D.N.J. 
1958). 

Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (1945). 

2 "While it is the great purpose of law to ascertain 
the truth, there is the countervailing necessity of insuring 
the right of every person to freely and fully confer and 
confide in one having knowledge of the law, and skilled in 
its practice, in order that the former may have adequate 
advice and a proper defense. This assistance can be made 
safely and readily available only when the client is free 


XXXVIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


after full disclosure, 3 when necessary to perform 
his professional employment, when permitted by 
a Disciplinary Rule, or when required by law. Un- 
less the client otherwise directs, a lawyer may dis- 
close the affairs of his client to partners or asso- 
ciates of his firm. It is a matter of common knowl- 
edge that the normal operation of a law office ex- 
poses confidential professional information to non- 
lawyer employees of the office, particularly secre- 
taries and those having access to the files; and this 
obligates a lawyer to exercise care in selecting and 
training his employees so that the sanctity of all 
confidences and secrets of his clients may be pre- 
served. If the obligation extends to two or more 
clients as to the same information, a lawyer should 
obtain the permission of all before revealing the 
information. A lawyer must always be sensitive 
to the rights and wishes of his client and act 
scrupulously in the making of decisions which may 
involve the disclosure of information obtained in 
his professional relationship. 4 Thus, in the ab- 
sence of consent of his client after full disclosure, 
a lawyer should not associate another lawyer in 
the handling of a matter; nor should he, in the ab- 
sence of consent, seek counsel from another lawyer 
if there is a reasonable possibility that the identi 
of the client or his confidences or secrets would be 
revealed to such lawyer. Both social amenities 
and professional duty should cause a lawyer to 
shun indiscreet conversations concerning his 
clients. 

EC 4-3 Unless the client otherwise directs, it is 
not improper for a lawyer to give limited informa- 
tion from his files to an outside agency necessary 
for statistical, bookkeeping, accounting, data proc- 
essing, banking, printing, or other legitimate pur- 
poses, provided he exercises due care in the selec- 
tion of the agency and warns the agency that the 
information must be kept confidential. 

EC 4-4 The attorney-client privilege is more limit- 
ed than the ethical obligation of a lawyer to guard 
the confidences and secrets of his client. This 
ethical precept, unlike the evidentiary privilege, 
exists without regard to the nature or source of 
information or the fact that others share the 
knowledge. A lawyer should endeavor to act in 
a manner which preserves the evidentiary privi- 
lege; for example, he should avoid professional 

from the consequences of apprehension of disclosure by 
reason of the subsequent statements of the skilled lawyer." 
Baird v. Koerner, 279 F.2d 623, 629-30 (9th Cir. 1960). 

Cf. ABA Opinion 150 (1936). 

3 "Where ... [a client] knowingly and after full 
disclosure participates in a [legal fee] financing plan 
which requires the furnishing of certain information to 
the bank, clearly by his conduct he has waived any priv- 
ilege as to that information." ABA Opinion 320 (1968). 

4 "The lawyer must decide when he takes a case whether 

it is a suitable one for him to undertake and after this 

decision is made, he is not justified in turning against 
his client by exposing injurious evidence entrusted to 

him. . . . [D]oing something intrinsically regrettable, 

because the only alternative involves worse consequences, 
is a necessity in every profession." Williston, Life and 
Law 271 (1940). 

Cf. ABA Opinions 177 (1938) and 83 (1932). 


discussions in the presence of persons to whom the 
privilege does not extend. A lawyer owes an ob- 
ligation to advise the client of the attorney-client 
privilege and timely to assert the privilege unless 
it is waived by the client. 

EC 4-5 A lawyer should not use information ac- 
quired in the course of the representation of a 
client to the disadvantage of the client and a law- 
yer should not use, except with the consent of his 
client after full disclosure, such information for 
his own purposes. 5 * * Likewise, a lawyer should be 
diligent in his efforts to prevent the misuse of such 
information by his employees and associates. 6 
Care should be exercised by a lawyer to prevent 
the disclosure of the confidences and secrets of 
one client to another," and no employment should 
be accepted that might require such disclosure. 

EC 4-6 The obligation of a lawyer to preserve the 
confidences and secrets of his client continues after 
the termination of his employment. 8 Thus a law- 
yer should not attempt to sell a law practice as a 
going business because, among other reasons, to 
do so would involve the disclosure of confidences 
and secrets. 9 A lawyer should also provide for the 
protection of the confidences and secrets of his 
client following the termination of the practice of 
the lawyer, whether termination is due to death, 
disability, or retirement. For example, a lawyer 
might provide for the personal papers of the client 
to be returned to him and for the papers of the 
lawyer to be delivered to another lawyer or to be 
destroyed. In determining the method of disposi- 
tion, the instructions and wishes of the client 
should be a dominant consideration. 

DISCIPLINARY RULES 

DR 4-101 Preservation of Confidences and Se- 
crets of a Client. 10 

(A) "Confidence" refers to information protected 
by the attorney-client privilege under applica- 
ble law, and "secret" refers to other informa- 
tion gained in the professional relationship 
that the client has requested be held inviolate 
or the disclosure of which would be em- 

See ABA Canon 1 1 . 

6 See ABA Canon 37. 

7 See ABA Canons 6 and 37. 

"[A]n attorney must not accept professional employment 
against a client or a former client which will, or even may 
require him to use confidential information obtained by the 
attorney in the course of his professional relations with 
such client regarding the subject matter of the employ- 
ment . . ” ABA Opinion 165 (1936). 

8 See ABA Canon 37. 

"Confidential communications between an attorney and 
his client, made because of the relationship and concerning 
the subject-matter of the attorney's employment, are 
generally privileged from disclosure without the con- 
sent of the client, and this privilege outlasts the attor- 
ney's employment. Canon 37." ABA Opinion 154 (1936). 

9 Cf. ABA Opinion 266 (1945). 

10 See ABA Canon 37; cf. ABA Canon 6. 


XXXIX 



CODE OF PROFESSIONAL RESPONSIBILITY 


barrassing or would be likely to be detrimen- 
tal to the client. 

(B) Except when permitted under DR 4- 10 1(C), 
a lawyer shall not knowingly: 

(1) Reveal a confidence or secret of his 
client." 

(2) Use a confidence or secret of his client 
to the disadvantage of the client. 

(3) Use a confidence or secret of his client 
for the advantage of himself 12 or of a 
third person, 13 unless the client con- 
sents after full disclosure. 

(C) A lawyer may reveal: 

(1) Confidences or secrets with the consent 
of the client or clients affected, but only 
after a full disclosure to them. 14 

(2) Confidences or secrets when permitted 
under Disciplinary Rules or required by 
law or court order. 1 5 

11 "§ 6068 . It is the duty of an attorney : 

"(e) To maintain inviolate the confidence, and at every 
peril to himself to preserve the secrets, of his client." Cal. 
Business and Professions Code § 6068 (West 1962). Vir- 
tually the same provision is found in the Oregon statutes. 
Ore. Rev. Stats, ch. 9, § 9.460(5). 

"Communications between lawyer and client are priv- 
ileged (Wigmore on Evidence, 3d. Ed., Vol. 8, §§ 2290- 
2329). The modern theory underlying the privilege is sub- 
jective and is to give the client freedom of apprehension 
in consulting his legal adviser (ibid., § 2290, p. 548). The 
privilege applies to communications made in seeking legal 
advice for any purpose (ibid., § 2294, p. 563). The mere 
circumstance that the advice is given without charge there- 
fore does not nullify the privilege (ibid., § 2303)." ABA 
Opinion 216 (1941). 

"It is the duty of an attorney to maintain the confidence 
and preserve inviolate the secrets of his client . . . * * 

ABA Opinion 155 (1936). 

12 See ABA Canon 11. 

"The provision respecting employment is in accord 
with the general rule announced in the adjudicated cases 
that a lawyer may not make use of knowledge or informa- 
tion acquired by him through his professional relations 
with his client, or in the conduct of his client's business, 
to his own advantage or profit (7 C.J.S., § 125, p. 958; 
Healy v. Gray, 184 Iowa 111, 168 N.W. 222; Baumgardner 
v. Hudson, D.C.App., 277 F. 552; Goodrum v. Clement, 
D.C.App., 277 F. 586)." ABA Opinion 250 (1943). 

13 See ABA Opinion 177 (1938). 

14 "[A lawyer] may not divulge confidential communi- 
cations, information, and secrets imparted to him by the 
client or acquired during their professional relations, un- 
less he is authorized to do so by the client (People v. Ger- 
old, 265 111. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238 
Mich. 151, 213 N.W. 110, 112; Opinion of this Committee, 
No. 91)." ABA Opinion 202 (1940). 

Of. ABA Opinion 91 (1933). 

is "A defendant in a criminal case when admitted to 
bail is not only regarded as in the custody of his bail, but 
he is also in the custody of the law, and admission to 
bail does not deprive the court of its inherent power to 
deal with the person of the prisoner. Being in lawful 
custody, the defendant is guilty of an escape when he 
gains his liberty before he is delivered in due process of 
law, and is guilty of a separate offense for which he may 


(3) The intention of his client to commit a 
crime 16 and the information necessary 
to prevent the crime. 17 

(4) Confidences or secrets necessary to es- 
tablish or collect his fee 18 or to defend 
himself or his employees or associates 
against an accusation of wrongful con- 
duct. 19 

(D) A lawyer shall exercise reasonable care to 
prevent his employees, associates, and others 
whose services are utilized by him from dis- 
closing or using confidences or secrets of a 
client, except that a lawyer may reveal the 
information allowed by DR 4- 10 1(C) through 
an employee. 

be punished. In failing to disclose his client's where- 
abouts as a fugitive under these circumstances the attor- 
ney would not only be aiding his client to escape trial on 
the charge for which he was indicted, but would likewise 
be aiding him in evading prosecution for the additional 
offense of escape. 

"It is the opinion of the committee that under such cir- 
cumstances the attorney's knowledge of his client's where- 
abouts is not privileged, and that he may be disciplined 
for failing to disclose that information to the proper au- 
thorities. . . " ABA Opinion 155 (1936). 

"We held in Opinion 155 that a communication by a 
client to his attorney in respect to the future commission 
of an unlawful act or to a continuing wrong is not priv- 
ileged from disclosure. Public policy forbids that the re- 
lation of attorney and client should be used to conceal 
wrongdoing on the part of the client. 

"When an attorney representing a defendant in a 
criminal case applies on his behalf for probation or suspen- 
sion of sentence, he represents to the court, by implication 
at least, that his client will abide by the terms and con- 
ditions of the court’s order. When that attorney is later 
advised of a violation of that order, it is his duty to ad- 
vise his client of the consequences of his act, and endeavor 
to prevent a continuance of the wrongdoing. If his client 
thereafter persists in violating the terms and conditions of 
his probation, it is the duty of the attorney as an officer 
of the court to advise the proper authorities concerning his 
client's conduct. Such information, even though coming 
to the attorney from the client in the course of his profes- 
sional relations with respect to other matters in which he 
represents the defendant, is not privileged from disclosure. 

, . ff ABA Opinion 156 (1936). 

16 ABA Opinion 314 (1965) indicates that a lawyer must 
disclose even the confidences of his clients if "the facts 
in the attorney's possession indicate beyond reasonable 
doubt that a crime will be committed." 

See ABA Opinion 155 (1936). 

17 See ABA Canon 37 and ABA Opinion 202 (1940). 

is Cf. ABA Opinion 250 (1943). 

19 See ABA Canon 37 and ABA Opinions 202 (1940) and 
19 (1930). 

"[T]he adjudicated cases recognize an exception to the 
rule [that a lawyer shall not reveal the confidences of 
his client], where disclosure is necessary to protect the 
attorney's interests arising out of the relation of attorney 
and client in which disclosure was made. 

"The exception is stated in Mechem on Agency, 2d Ed., 
Vol. 2, § 2313, as follows : 'But the attorney may disclose 
information received from the client when it becomes 
necessary for his own protection, as if the client should 
bring an action against the attorney for negligence or mis- 
conduct, and it became necessary for the attorney to 



CODE OF PROFESSIONAL RESPONSIBILITY 


CANON 5 

A Lawyer Should Exercise Independent 
Professional Judgment on Behalf 
of a Client 

ETHICAL CONSIDERATIONS 

EC 5- 1 The professional judgment of a lawyer 
should be exercised, within the bounds of the law, 
solely for the benefit of his client and free of com- 
promising influences and loyalties. 1 Neither his 

show what his instructions were, or what was the nature 
of the duty which the client expected him to perform. 

So if it became necessary for the attorney to bring an ac- 
tion against the client, the client's privilege could not pre- 
vent the attorney from disclosing what was essential as 
a means of obtaining or defending his own rights.' 

"Mr. Jones, in his Commentaries on Evidence, 2d Ed., 

Vol. 5, § 2165, states the exception thus : 'It has frequently 
been held that the rule as to privileged communications 
does not apply when litigation arises between attorney and 
client to the extent that their communications are relevant 
to the issue. In such cases, if the disclosure of privileged 
communications becomes necessary to protect the attorney's 
rights, he is released from those obligations of secrecy 
which the law places upon him. He should not, however, 
disclose more than is necessary for his own protection. It 
would be a manifest injustice to allow the client to take ad- 
vantage of the rule of exclusion as to professional confi- 
dence to the prejudice of his attorney, or that it should, 
be carried to the extent of depriving the attorney of the 
means of obtaining or defending his own rights. In such 
cases the attorney is exempted from the obligations of 
secrecy.' " ABA Opinion 250 (1943). 

1 Cf. ABA Canon 35. 

"[A lawyer's] fiduciary duty is of the highest order 
and he must not represent interests adverse to those of 
the client. It is also true that because of his professional 
responsibility and the confidence and trust which his 
client may legitimately repose in him, he must adhere to a 
high standard of honesty, integrity and good faith in deal- 
ing with his client. He is not permitted to take advantage 
of his position or superior knowledge to impose upon the 
client; nor to conceal facts or law, nor in any way deceive 
him without being held responsible therefor." Smoot v. 
Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962). 

"When a client engages the services of a lawyer in a 
given piece of business he is entitled to feel that, until 
that business is finally disposed of in some manner, he 
has the undivided loyalty of the one upon whom he looks 
as his advocate and champion. If, as in this case, he is 
sued and his home attached by his own attorney, who is 
representing him in another matter, all feeling of loyalty 
is necessarily destroyed, and the profession is exposed to 
the charge that it is interested only in money." Grievance 
Comm. v. Rattner, 152 Conn. 59, 65, 203 A. 2d 82, 84 
(1964). 

"One of the cardinal principles confronting every attor- 
ney in the representation of a client is the requirement of 
complete loyalty and service in good faith to the best of 
his ability. In a criminal case the client is entitled to 
a fair trial, but not a perfect one. These are fundamental 
requirements of due process under the Fourteenth Amend- 
ment. . . . The same principles are applicable in 
Sixth Amendment cases (not pertinent herein) and sug- 
gest that an attorney should have no conflict of interest 
and that he must devote his full and faithful efforts to- 
ward the defense of his client." Johns v. Smyth, 176 
F.Supp. 949, 952 (E.D.Va. 1959), modified, United States 
ex rel. Wilkins v. Banmiller, 205 F.Supp. 123, 128 n. 5 
(E.D.Pa. 1962), affd, 325 F.2d 514 (3d Cir. 1963), cert, de- 
nied, 379 U.S. 847, 13 L.Ed.2d 51, 85 S.Ct. 87 (1964). 

XLI 


personal interests, the interests of other clients, 
nor the desires of third persons should be permit- 
ted to dilute his loyalty to his client. 

Interests of a Lawyer That May Affect His Judg- 
ment 

EC 5-2 A lawyer should not accept proffered 
employment if his personal interests or desires 
will, or there is a reasonable probability that they 
will, affect adversely the advice to be given or 
services to be rendered the prospective client. 2 
After accepting employment, a lawyer carefully 
should refrain from acquiring a property right or 
assuming a position that would tend to make his 
judgment less protective of the interests of his 
client. 

EC 5-3 The self-interest of a lawyer resulting 
from his ownership of property in which his client 
also has an interest or which may affect property 
of his client may interfere with the exercise of 
free judgment on behalf of his client. If such in- 
terference would occur with respect to a prospec- 
tive client, a lawyer should decline employment 
proffered by him. After accepting employment, a 
lawyer should not acquire property rights that 
would adversely affect his professional judgment 
in the representation of his client. Even if the 
property interests of a lawyer do not presently in- 
terfere with the exercise of his independent judg- 
ment, but the likelihood of interference can rea- 
sonably be foreseen by him, a lawyer should ex- 
plain the situation to his client and should decline 
employment or withdraw unless the client con- 
sents to the continuance of the relationship after 
full disclosure. A lawyer should not seek to per- 
suade his client to permit him to invest in an un- 
dertaking of his client nor make improper use of 
his professional relationship to influence his client 
to invest in an enterprise in which the lawyer is 
interested. 

EC 5-4 If, in the course of his representation of 
a client, a lawyer is permitted to receive from his 
client a beneficial ownership in publication rights 
relating to the subject matter of the employment, 
he may be tempted to subordinate the interests 
of his client to his own anticipated pecuniary gain. 

2 "Attorneys must not allow their private interests to 
conflict with those of their clients. . . . They owe 
their entire devotion to the interests of their clients." 
United States v. Anonymous, 215 F.Supp. Ill, 113 (E.D. 
Term. 1963). 

"[T]he court [below] concluded that a firm may not ac- 
cept any action against a person whom they are presently 
representing even though there is no relationship between 
the two cases. In arriving at this conclusion, the court 
cited an opinion of the Committee on Professional Ethics 
of the New York County Lawyers' Association which 
stated in part : 'While under the circumstances * * * 
there may be no actual conflict of interest * * * "main- 
tenance of public confidence in the Bar requires an at- 
torney who has accepted representation of a client to 
decline, while representing such client, any employment 
from an adverse party in any matter even though wholly 
unrelated to the original retainer." See Question and. 
Answer No. 350, N.Y. County L. Ass'n, Questions and An- 
swer No. 450 (June 21, 1956).' " Grievance Comm. v. 
Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964). 



CODE OF PROFESSIONAL RESPONSIBILITY 


For example, a lawyer in a criminal case who ob- 
tains from his client television, radio, motion pic- 
ture, newspaper, magazine, book, or other publica- 
tion rights with respect to the case may be influ- 
enced, consciously or unconsciously, to a course of 
conduct that will enhance the value of his publica- 
tion rights to the prejudice of his client. To pre- 
vent these potentially differing interests, such ar- 
rangements should be scrupulously avoided prior 
to the termination of all aspects of the matter giv- 
ing rise to the employment, even though his em- 
ployment has previously ended. 

EC 5-5 A lawyer should not suggest to his client 
that a gift be made to himself or for his benefit. 
If a lawyer accepts a gift from his client, he is 
peculiarly susceptible to the charge that he unduly 
influenced or overreached the client. If a client 
voluntarily offers to make a gift to his lawyer, the 
lawyer may accept the gift, but before doing so, he 
should urge that his client secure disinterested ad- 
vice from an independent, competent person who is 
cognizant of all the circumstances. 3 Other than in 
exceptional circumstances, a lawyer should insist 
that an instrument in which his client desires to 
name him beneficially be prepared by another law- 
yer selected by the client. 4 

EC 5-6 A lawyer should not consciously influ- 
ence a client to name him as executor, trustee, or 
lawyer in an instrument. In those cases where a 
client wishes to name his lawyer as such, care 
should be taken by the lawyer to avoid even the 
appearance of impropriety. 5 

EC 5-7 The possibility of an adverse effect upon 
the exercise of free judgment by a lawyer on be- 
half of his client during litigation generally makes 
it undesirable for the lawyer to acquire a proprie- 
tary interest in the cause of his client or otherwise 

3 "Courts of equity will scrutinize with jealous vigilance 
transactions between parties occupying fiduciary relations 
toward each other. ... A deed will not be held in- 
valid, however, if made by the grantor with full knowl- 
edge of its nature and effect, and because of the deliberate, 
voluntary and intelligent desire of the grantor. . . . 
Where a fiduciary relation exists, the burden of proof is 
on the grantee or beneficiary of an instrument executed 
during the existence of such relationship to show the fair- 
ness of the transaction, that it was equitable and just 
and that it did not proceed from undue influence. . . . 
The same rule has application where an attorney engages 
in a transaction with a client during the existence of the 
relation and is benefited thereby. . . . Conversely, 
an attorney is not prohibited from dealing with his client or 
buying his property, and such contracts, if open, fair and 
honest, when deliberately made, are as valid as contracts 
between other parties. . • . [IJmportant factors in 
determining whether a transaction is fair include a show- 
ing by the fiduciary (1) that he made a full and frank 
disclosure of all the relevant information that he had ; 
(2) that the consideration was adequate ; and (3) that the 
principal had independent advice before completing the 
transaction." McFall v. Braden, 19 111. 2d 108, 117-18, 166 
N.E.2d 46, 52 (1960). 

4 See State ex rel. Nebraska State Bar Ass'n v. Richards, 
165 Neb. 80, 94-95, 84 N.W.2d 136, 146 (1957). 


to become financially interested in the outcome of 
the litigation. 6 However, it is not improper for a 
lawyer to protect his right to collect a fee for his 
services by the assertion of legally permissible 
liens, even though by doing so he may acquire an 
interest in the outcome of litigation. Although a 
contingent fee arrangement 7 gives a lawyer a 
financial interest in the outcome of litigation, a 
reasonable contingent fee is permissible in civil 
cases because it may be the only means by which 
a layman can obtain the services of a lawyer of 
his choice. But a lawyer, because he is in a better 
position to evaluate a cause of action, should enter 
into a contingent fee arrangement only in those 
instances where the arrangement will be beneficial 
to the client. 

EC 5-8 A financial interest in the outcome of liti- 
gation also results if monetary advances are made 
by the lawyer to his client. 8 Although this assist- 
ance generally is not encouraged, there are in- 
stances when it is not improper to make loans to 
a client. For example, the advancing or guarantee- 
ing of payment of the costs and expenses of litiga- 
tion by a lawyer may be the only way a client can 
enforce his cause of action, 9 but the ultimate lia- 
bility for such costs and expenses must be that 
of the client. 

EC 5-9 Occasionally a lawyer is called upon to 
decide in a particular case whether he will be a 
witness or an advocate. If a lawyer is both coun- 
sel and witness, he becomes more easily impeach- 
able for interest and thus may be a less effective 
witness. Conversely, the opposing counsel may 
be handicapped in challenging the credibility of the 
lawyer when the lawyer also appears as an advo- 
cate in the case. An advocate who becomes a wit- 
ness is in the unseemly and ineffective position of 
arguing his own credibility. The roles of an ad- 
vocate and of a witness are inconsistent; the func- 
tion of an advocate is to advance or argue the 
cause of another, while that of a witness is to state 
facts objectively. 

EC 5-10 Problems incident to the lawyer- witness 
relationship arise at different stages; they relate 

6 See ABA Canon 10. 

7 See Code of Professional Responsibility, EC 2-20. 

8 See ABA Canon 42. 

9 "Rule 3 cl. ... A member of the State Bar shall 
not directly or indirectly pay or agree to pay, or repre- 
sent or sanction the representation that he will pay, med- 
ical, hospital or nursing bills or other personal expenses 
incurred by or for a client, prospective or existing ; pro- 
vided this rule shall not prohibit a member 

"(1) with the consent of the client, from paying or 
agreeing to pay to third persons such expenses from funds 
collected or to be collected for the client; or 

(2) after he has been employed, from lending money to 
his client upon the client's promise in writing to repay 
such loan; or 

(3) from advancing the costs of prosecuting or defend- 
ing a claim or action. Such costs within the meaning of 
this subparagraph (3) include all taxable costs or disburse- 
ments, costs or investigation and costs of obtaining and 
presenting evidence." Cal. Business and Professions Code 
§ 6076 (West Supp.1967). 

XLII 


See ABA Canoe 9 . 



CODE OF PROFESSIONAL RESPONSIBILITY 


either to whether a lawyer should accept employ- 
ment or should withdraw from employment. 10 Re- 
gardless of when the problem arises, his decision 
is to be governed by the same basic considerations. 
It is not objectionable for a lawyer who is a po- 
tential witness to be an advocate if it is unlikely 
that he will be called as a witness because his tes- 
timony would be merely cumulative or if his testi- 
mony will relate only to an uncontested issue. 1 1 
In the exceptional situation where it will be man- 
ifestly unfair to the client for the lawyer to refuse 
employment or to withdraw when he will likely 
be a witness on a contested issue, he may serve as 
advocate even though he may be a witness. 12 In- 
making such decision, he should determine the per- 
sonal or financial sacrifice of the client that may 
result from his refusal of employment or with- 
drawal therefrom, the materiality of his testimony, 
and the effectiveness of his representation in view 
of his personal involvement. In weighing these 
factors, it should be clear that refusal or with- 
drawal will impose an unreasonable hardship upon 
the client before the lawyer accepts or continues 
the employment. 13 Where the question arises, 
doubts should be resolved in favor of the lawyer 
testifying and against his becoming or continuing 
as an advocate. '4 

3.0 "when a lawyer knows, prior to trial, that he will 
be a necessary witness, except as to merely formal mat- 
ters such as identification or custody of a document or 
the like, neither he nor his firm or associates should con- 
duct the trial. If, during the trial, he discovers that the 
ends of justice require his testimony, he should, from that 
point on, if feasible and not prejudicial to his client's 
case, leave further conduct of the trial to other counsel. 
If circumstances do not permit withdrawal from the con- 
duct of the trial, the lawyer should not argue the credi- 
bility of his own testimony. " A Code of Trial Conduct: 
Promulgated by the American College of Trial Lawyers, 
43 A.B.A.J. 223, 224-25 (1957). 

11 Cf Canon 19 : "When a lawyer is a witness for his 
client, except as to merely formal matters, such as the 
attestation or custody of an instrument and the like, he 
should leave the trial of the case to other counsel." 

12 "It is the general rule that a lawyer may not testify 
in litigation in which he is an advocate unless circum- 
stances arise which could not be anticipated and it is 
necessary to prevent a miscarriage of justice. In those rare 
cases where the testimony of an attorney is needed to 
protect his client's interests, it is not only proper but 
mandatory that it be forthcoming." Schwartz v. Wenger, 
267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963). 

13 "The great weight of authority in this country holds 
that the attorney who acts as counsel and witness, in be- 
half of his client, in the same cause on a material matter, 
not of a merely formal character, and not in an emergency, 
but having knowledge that he would be required to be a 
witness in ample time to have secured other counsel and 
given up his service in the case, violates a highly im- 
portant provision of the Code of Ethics and a rule of 
professional conduct, but does not commit a legal error 
in so testifying, as a result of which a new trial will be 
granted." Erwin M. Jennings Co. v. DiGenova, 107 
Conn. 491, 499, 141 A. 866, 869 (1928). 

14 "[C]ases may arise, and in practice often do arise, in 
which there would be a failure of justice should the at- 
torney withhold his testimony, in such a case it would 
be a vicious professional sentiment which would deprive 


EC 5- 1 1 A lawyer should not permit his personal 
interests to influence his advice relative to a sug- 
gestion by his client that additional counsel be 
employed. 15 In like manner, his personal interests 
should not deter him from suggesting that addi- 
tional counsel be employed; on the contrary, he 
should be alert to the desirability of recommend- 
ing additional counsel when, in his judgment, the 
proper representation of his client requires it. 
However, a lawyer should advise his client not to 
employ additional counsel suggested by the client 
if the lawyer believes that such employment would 
be a disservice to the client, and he should dis- 
close the reasons for his belief. 

EC 5-12 Inability of co-counsel to agree on a mat- 
ter vital to the representation of their client re- 
quires that their disagreement be submitted by 
them jointly to their client for his resolution, and 
the decision of the client shall control the action 
to be taken. 16 

EC 5-13 A lawyer should not maintain member- 
ship in or be influenced by any organization of 
employees that undertakes to prescribe, direct, or 
suggest when or how he should fulfill his pro- 
fessional obligations to a person or organization 
that employs him as a lawyer. Although it is not 
necessarily improper for a lawyer employed by a 
corporation or similar entity to be a member of 
an organization of employees, he should be vig- 
ilant to safeguard his fidelity as a lawyer to his 
employer, free from outside influences. 

Interests of Multiple Clients 

EC 5-14 Maintaining the independence of profes- 
sional judgment required of a lawyer precludes 
his acceptance or continuation of employment that 
will adversely affect his judgment on behalf of or 
dilute his loyalty to a client. 17 This problem arises 
whenever a lawyer is asked to represent two or 
more clients who may have differing interests, 
whether such interests be conflicting, inconsistent, 
diverse, or otherwise discordant. 18 

EC 5-15 If a lawyer is requested to undertake or 
to continue representation of multiple clients hav- 
ing potentially differing interests, he must weigh 
carefully the possibility that his judgment may be 
impaired or his loyalty divided if he accepts or 

the client of the benefit of his attorney's testimony." Con- 
nolly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881). 

But see Canon 19: "Except when essential to the ends of 
justice, a lawyer should avoid testifying in court in be- 
half of his client. " 

15 Cf. ABA Canon 7. 

16 See ABA Canon 7. 

17 See ABA Canon 6; cf. ABA Opinions 261 (1944), 242 
(1942), 142 (1935), and 30 (1931). 

is The ABA Canons speak of "conflicting interests" 
rather than "differing interests" but make no attempt to 
define such other than the statement in Canon 6: "Within 
the meaning of this canon, a lawyer represents conflicting 
interests when, in behalf of one client, it is his duty to con- 
tend for that which duty to another client requires him 
to oppose." 


XLIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


continues the employment. He should resolve all 
doubts against the propriety of the representation. 
A lawyer should never represent in litigation mul- 
tiple clients with differing interests, 10 and there 
are few situations in which he would be justified 
in representing in litigation multiple clients with 
potentially differing interests. If a lawyer ac- 
cepted such employment and the interests did be- 
come actually differing, he would have to with- 
draw from employment with likelihood of result- 
ing hardship on the clients; and for this reason 
it is preferable that he refuse the employment ini- 
tially. On the other hand, there are many in- 
stances in which a lawyer may properly serve mul- 
tiple clients having potentially differing interests 
in matters not involving litigation. If the inter- 
ests vary only slightly, it is generally likely that 
the lawyer will not be subjected to an adverse 
influence and that he can retain his independent 
judgment on behalf of each client; and if the in- 
terests become differing, withdrawal is less likely 
to have a disruptive effect upon the causes of his 
clients. 

EC 5-16 In those instances in which a lawyer is 
justified in representing two or more clients hav- 
ing differing interests, it is nevertheless essential 
that each client be given the opportunity to evalu- 
ate his need for representation free of any poten- 
tial conflict and to obtain other counsel if he so 
desires. 20 Thus before a lawyer may represent 

19 

"Canon 6 of the Canons of Professional Ethics, adopt- 
ed by the American Bar Association on September 30, 
1937, and by the Pennsylvania Bar Association on January 
7, 1938, provides in part that 'It is unprofessional to 
represent conflicting interests, except by express consent 
of all concerned given after a full disclosure of the facts. 
Within the meaning of this Canon, a lawyer represents 
conflicting interests when, in behalf of one client, it is 
his duty to contend for that which duty to another client 
requires him to oppose.' The full disclosure required by 
this canon contemplates that the possibly adverse effect 
of the conflict be fully explained by the attorney to the 
client to be affected and by him thoroughly understood. 

"The foregoing canon applies to cases where the cir- 
cumstances are such that possibly conflicting interests 
may permissibly be represented by the same attorney. 
But manifestly, there are instances where the conflicts 
of interest are so critically adverse as not to admit of one 
attorney's representing both sides. Such is the situation 
which this record presents. No one could conscionably 
contend that the same attorney may represent both the 
plaintiff and defendant in an adversary action. Yet, that 
is what is being done in this case." Jedwabny v. Phila- 
delphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252, 
254 (1957), cert, denied, 355 U.S. 966, 2 L.Ed.2d 541, 78 
S.Ct. 557 (1958). 

20 "Glasser wished the benefit of the undivided assist- 
ance of counsel of his own choice. We think that such a 
desire on the part of an accused should be respected. Ir- 
respective of any conflict of interest, the additional burden 
of representing another party may conceivably impair 
counsel's effectiveness. 

"To determine the precise degree of prejudice sustained, 
by Glasser as a result of the court's appointment of Stew- 
art as counsel for Kretske is at once difficult and unneces- 
sary. The right to have the assistance of counsel Is too 
fundamental and absolute to allow courts to indulge in 
nice calculations as to the amount of prejudice arising from 


multiple clients, he should explain fully to each 
client the implications of the common representa- 
tion and should accept or continue employment 
only if the clients consent. 21 If there are present 
other circumstances that might cause any of the 
multiple clients to question the undivided loyalty 
of the lawyer, he should also advise all of the 
clients of those circumstances. 22 

EC 5-17 Typically recurring situations involving 
potentially differing interests are those in which 
a lawyer is asked to represent co-defendants in a 
criminal case, co-plaintiffs in a personal injury 
case, an insured and his insurer, 23 and benefici- 
aries of the estate of a decedent. Whether a law- 
yer can fairly and adequately protect the interests 
of multiple clients in these and similar situations 
depends upon an analysis of each case. In certain 
circumstances, there may exist little chance of the 
judgment of the lawyer being adversely affected 
by the slight possibility that the interests will be- 
come actually differing; in other circumstances, 
the chance of adverse effect upon his judgment is 
not unlikely. 

EC 5- 1 8 A lawyer employed or retained by a cor- 
poration or similar entity owes his allegiance to 
the entity and not to a stockholder, director, offi- 
cer, employee, representative, or other person con- 
nected with the entity. In advising the entity, a 
lawyer should keep paramount its interests and 
his professional judgment should not be influenced 

its denial." Glasser v. United States, 315 U.S. 60, 75-76, 
86 L.Ed. 680, 702 S.Ct. 457, 467 (1942). 

21 See ABA Canon 6. 

22 Id. 

23 Cf. ABA Opinion 282 (1950). 

"When counsel, although paid by the casualty company, 
undertakes to represent the policyholder and files his no- 
tice of appearance, he owes to his client, the assured, an 
undeviating and single allegiance. His fealty embraces the 
requirement to produce in court all witnesses, fact and 
expert, who are available and necessary for the proper 
protection of the rights of his client. . . . 

"... The Canons of Professional Ethics make it 
pellucid that there are not two standards, one applying 
to counsel privately retained by a client, and the other 
to counsel paid by an insurance carrier." American Em- 
ployers Ins. Co. v. Goble Aircraft Specialties, 205 Misc. 
1066, 1075, 131 N.Y.S.2d 393, 401 (1954), motion to tuith- 
dratu appeal granted, 1 App.Div.2d 1008, 154 N.Y.S.2d 
835 (1956). 

"[CJounsel, selected by State Farm to defend Dorothy 
Walker's suit for $50,000 damages, was apprised by Walker 
that his earlier version of the accident was untrue and 
that actually the accident occurred because he lost con- 
trol of his car in passing a Cadillac just ahead. At that 
point, Walker's counsel should have refused to participate 
further in view of the conflict of interest between Walker 
and State Farm. . . . Instead he participated in the 
ensuing deposition of the Walkers, even took an ex parte 
sworn statement from Mr. Walker in order to advise 
State Farm what action it should take, and later used the 
statement against Walker in the District Court. This ac- 
tion appears to contravene an Indiana attorney's duty 'at 
every peril to himself, to preserve the secrets of his client' 

, . .." State Farm Mut. Auto Ins. Co. v. Walker, 382 
F.2d 548, 552 (1967), cert, denied, 389 U.S. 1045, 19 L.Ed. 
2d 837, 88 S.Ct. 789 (1968). 


XLIV 



CODE OF PROFESSIONAL RESPONSIBILITY 


by the personal desires of any person or organiza- 
tion. Occasionally a lawyer for an entity is re- 
quested by a stockholder, director, officer, em- 
ployee, representative, or other person connected 
with the entity to represent him in an individual 
capacity; in such case the lawyer may serve the 
individual only if the lawyer is convinced that dif- 
fering interests are not present. 

EC 5-19 A lawyer may represent several clients 
whose interests are not actually or potentially dif- 
fering. Nevertheless, he should explain any cir- 
cumstances that might cause a client to question 
his undivided loyalty. 24 Regardless of the belief 
of a lawyer that he may properly represent mul- 
tiple clients, he must defer to a client who holds 
the contrary belief and withdraw from representa- 
tion of that client. 

EC 5-20 A lawyer is often asked to serve as an 
impartial arbitrator or mediator in matters which 
involve present or former clients. He may serve 
in either capacity if he first discloses such present 
or former relationships. After a lawyer has un- 
dertaken to act as an impartial arbitrator or medi- 
ator, he should not thereafter represent in the 
dispute any of the parties involved. 

Desires of Third Persons 

EC 5-2 1 The obligation of a lawyer to exercise 
professional judgment solely on behalf of his client 
requires that he disregard the desires of others 
that might impair his free judgment. 23 The de- 
sires of a third person will seldom adversely af- 
fect a lawyer unless that person is in a position 
to exert strong economic, political, or social pres- 
sures upon the lawyer. These influences are often 
subtle, and a lawyer must be alert to their exist- 
ence. A lawyer subjected to outside pressures 
should make full disclosure of them to his client; 26 
and if he or his client believes that the effective- 
ness of his representation has been or will be im- 
paired thereby, the lawyer should take proper 
steps to withdraw from representation of his 
client. 

EC 5-22 Economic, political, or social pressures 
by third persons are less likely to impinge upon 
the independent judgment of a lawyer in a matter 

24 See ABA Canon 6 . 

3 

2 See ABA Canon 35. 

"Objection to the intervention of a lay intermediary, 
who may control litigation or otherwise interfere with 
the rendering of legal services in a confidential relation- 
ship, . . . derives from the element of pecuniary gain. 
Fearful of dangers thought to arise from that element, 
the courts of several States have sustained regulations 
aimed at these activities. We intimate no view one way or 
the other as to the merits of those decisions with respect to 
the particular arrangements against which they are di- 
rected. It is enough that the superficial resemblance in 
form between those arrangements and that at bar cannot 
obscure the vital fact that here the entire arrangement em- 
ploys constitutionally privileged means of expression to se- 
cure constitutionally guaranteed civil rights." NAACP v. 
Button, 371 U.S. 415, 441-42, 9 L.Ed.2d 405, 423-24, 83 
S.Ct. 328, 342-43 (1963). 

28 Cf. ABA Canon 38. 


in which he is compensated directly by his client 
and his professional work is exclusively with his 
client. On the other hand, if a lawyer is compen- 
sated from a source other than his client, he may 
feel a sense of responsibility to someone other 
than his client. 

EC 5-23 A person or organization that pays or 
furnishes lawyers to represent others possesses a 
potential power to exert strong pressures against 
the independent judgment of those lawyers. Some 
employers may be interested in furthering their 
own economic, political, or social goals without re- 
gard to the professional responsibility of the law- 
yer to his individual client. Others may be far 
more concerned with establishment or extension 
of legal principles than in the immediate protec- 
tion of the rights of the lawyer's individual client. 
On some occasions, decisions on priority of work 
may be made by the employer rather than the 
lawyer with the result that prosecution of work 
already undertaken for clients is postponed to 
their detriment. Similarly, an employer may seek, 
consciously or unconsciously, to further its own 
economic interests through the actions of the law- 
yers employed by it. Since a lawyer must always 
be free to exercise his professional judgment with- 
out regard to the interests or motives of a third 
person, the lawyer who is employed by one to rep- 
resent another must constantly guard against ero- 
sion of his professional freedom. 27 

EC 5-24 To assist a lawyer in preserving his pro- 
fessional independence, a number of courses are 
available to him. For example, a lawyer should 
not practice with or in the form of a professional 
legal corporation, even though the corporate form 
is permitted by law, 28 if any director, officer, or 
stockholder of it is a non-lawyer. Although a law- 
yer may be employed by a business corporation 
with non-lawyers serving as directors or officers, 
and they necessarily have the right to make de- 
cisions of business policy, a lawyer must decline 
to accept direction of his professional judgment 
from any layman. Various types of legal aid of- 

27 

"Certainly it is true that 'the professional relation- 
ship between an attorney and his client is highly personal, 
involving an intimate appreciation of each individual 
client's particular problem.' And this Committee does 
not condone practices which interfere with that relation- 
ship. However, the mere fact the lawyer is actually paid 
by some entity other than the client does not affect that 
relationship, so long as the lawyer is selected by and is 
directly responsible to the client. See Informal Opinions 
469 and 679. Of course, as the latter decision points out, 
there must be full disclosure of the arrangement by the 
attorney to the client. . . " ABA Opinion 320 (1968). 

" [A] third party may pay the cost of legal services as 
long as control remains in the client and the responsibility 
of the lawyer is solely to the client. Informal Opinions 469 
ad [sic] 679. See also Opinion 237." Id. 

28 ABA Opinion 303 (1961) recognized that "[statutory 
provisions now exist in several states which are designed 
to make [the practice of law in a form that will be classi- 
fied as a corporation for federal income tax purposes] le- 
gally possible, either as a result of lawyers incorporating 
or forming associations with various corporate character- 
istics." 


XLV 



CODE OF PROFESSIONAL RESPONSIBILITY 


flees are administered by boards of directors com- 
posed of lawyers and laymen. A lawyer should 
not accept employment from such an organization 
unless the board sets only broad policies and there 
is no interference in the relationship of the law- 
yer and the individual client he serves. Where a 
lawyer is employed by an organization, a written 
agreement that defines the relationship between 
him and the organization and provides for his in- 
dependence is desirable since it may serve to pre- 
vent misunderstanding as to their respective roles. 
Although other innovations in the means of sup- 
plying legal counsel may develop, the responsibil- 
ity of the lawyer to maintain his professional in- 
dependence remains constant, and the legal pro- 
fession must insure that changing circumstances 
do not result in loss of the professional inde- 
pendence of the lawyer. 

DISCIPLINARY RULES 

DR 5-101 Refusing Employment When the Inter- 
ests of the Lawyer May Impair His In- 
dependent Professional Judgment. 

(A) Except with the consent of his client after 
full disclosure, a lawyer shall not accept em- 
ployment if the exercise of his professional 
judgment on behalf of his client will be or 
reasonably may be affected by his own fi- 
nancial, business, property, or personal inter- 
ests. 29 

(B) A lawyer shall not accept employment in con- 
templated or pending litigation if he knows 
or it is obvious that he or a lawyer in his firm 
ought to be called as a witness, except that 
he may undertake the employment and he or 
a lawyer in his firm may testify: 

(1) If the testimony will relate solely to an 
uncontested matter. 

(2) If the testimony will relate solely to a 
matter of formality and there is no rea- 
son to believe that substantial evidence 
will be offered in opposition to the testi- 
mony. 

29 Cf. ABA Canon 6 and ABA Opinions 181 (1938), 104 
(1934), 103 (1933), 72 (1932), 50 (1931), 49 (1931), and 33 
(1931). 

"New York County [Opinion] 203. ... [A lawyer] 
should not advise a client to employ an investment com- 
pany in which he is interested, without informing him of 
this." Drinker, LEGAL ETHICS 956 (1953). 

"In Opinions 72 and 49 this Committee held : The rela- 
tions of partners in a law firm are such that neither the 
firm nor any member or associate thereof, may accept 
any professional employment which any member of the 
firm cannot properly accept. 

"In Opinion 16 this Committee held that a member of a 
law firm could not represent a defendant in a criminal 
case which was being prosecuted by another member of 
the firm who was public prosecuting attorney. The Opin- 
ion stated that it was clearly unethical for one member 
of the firm to oppose the interest of the state while an- 
other member represented those interests .... Since 
the prosecutor himself could not represent both the public 
and the defendant, no member of his law firm could 
either." ABA Opinion 296 (1959). 


(3) If the testimony will relate solely to the 
nature and value of legal services ren- 
dered in the case by the lawyer or his 
firm to the client. 

(4) As to any matter, if refusal would work 
a substantial hardship on the client be- 
cause of the distinctive value of the law- 
yer or his firm as counsel in the partic- 
ular case. 

DR 5-102 Withdrawal as Counsel When the Law- 
yer Becomes a Witness. 30 

(A) If, after undertaking employment in contem- 
plated or pending litigation, a lawyer learns 
or it is obvious that he or a lawyer in his 
firm ought to be called as a witness on behalf 
of his client, he shall withdraw from the con- 
duct of the trial and his firm, if any, shall not 
continue representation in the trial, except 
that he may continue the representation and 
he or a lawyer in his firm may testify in the 
circumstances enumerated in DR 5- 10 1(B) 
(1) through (4). 

(B) If, after undertaking employment in contem- 
plated or pending litigation, a lawyer learns 
or it is obvious that he or a lawyer in his 
firm may be called as a witness other than 
on behalf of his client, he may continue the 
representation until it is apparent that his 
testimony is or may be prejudicial to his 
client. 31 

DR 5-103 Avoiding Acquisition of Interest in Lit- 
igation. 

(A) A lawyer shall not acquire a proprietary in- 

terest in the cause of action or subject matter 
of litigation he is conducting for a client, 3 2 
except that he may: 

(1) Acquire a lien granted by law to secure 
his fee or expenses. 

(2) Contract with a client for a reasonable 
contingent fee in a civil case. 33 

( B) While representing a client in connection with 

contemplated or pending litigation, a lawyer 
shall not advance or guarantee financial as- 

30 cf. ABA Canon 19 and ABA Opinions 220 (1941), 185 
(1938), 50 (1931), and 33 (1931) ; but c f. Erwin M. Jen- 
nings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866, 
868 (1928). 

31 "This Canon [19] of Ethics needs no elaboration to 
be applied to the facts here. Apparently, the object of 
this precept is to avoid putting a lawyer in the obviously 
embarrassing predicament of testifying and then having 
to argue the credibility and effect of his own testimony. 
It was not designed to permit a lawyer to call opposing 
counsel as a witness and thereby disqualify him as coun- 
sel." Galarowicz v. Ward, 1 19 Utah 61 1, 620, 230 P.2d 
576, 580 (1951). 

32 ABA Canon 10 and ABA Opinions 279 (1949), 246 
(1942), and 176 (1938). 

33 See Code of Professional Responsibility, DR 2- 106(C). 


XLVI 



CODE OF PROFESSIONAL RESPONSIBILITY 


prevent prospective jurors from being impartial at 
the outset of the trial 34 and may also interfere 
with the obligation of jurors to base their verdict 
solely upon the evidence admitted in the trial. 55 

"Court proceedings are held for the solemn purpose of 
endeavoring to ascertain the truth which is the sine qua 
non of a fair trial. Over the centuries Anglo-American 
courts have devised careful safeguards by rule and other- 
wise to protect and facilitate the performance of this high 
function. As a result, at this time those safeguards do 
not permit the televising and photographing of a criminal 
trial, save in two States and there only under restrictions. 
The federal courts prohibit it by specific rule. This is 
weighty evidence that our concepts of a fair trial do not 
tolerate such an indulgence. We have always held that 
the atmosphere essential to the preservation of a fair 
trial — the most fundamental of all freedoms — must be 
maintained at all costs." Estes v. State of Texas, 381 U.S. 
532, 540, 14 L.Ed.2d 543, 549, 85 S.Ct. 1628, 1631-32 (1965), 
rehearing denied, 382 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 
(1965). 

54 "Pretrial can create a major problem for the defend- 
ant in a criminal case. Indeed, it may be more harmful 
than publicity during the trial for it may well set the com- 
munity opinion as to guilt or innocence. . . . The 
trial witnesses present at the hearing, as well as the 
original jury panel, were undoubtedly made aware of the 
peculiar public importance of the case by the press and 
television coverage being provided, and by the fact that 
they themselves were televised live and their pictures re- 
broadcast on the evening show." Id., 381 U.S. at 536-37, 
14 L.Ed.2d at 546-47, 85 S.Ct. at 1629-30. 

55 "The undeviating rule of this Court was expressed by 
Mr. Justice Holmes over half a century ago in Patterson 
v. Colorado, 205 U.S. 454, 462 (1907) : 

The theory of our system is that the conclusions to be 

reached in a case will be induced only by evidence and 

argument in open court, and not by any outside influ- 
ence, whether of private talk or public print." 
Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L.Ed.2d 600, 
614, 86 S.Ct. 1507, 1516 (1966). 

"The trial judge has a large discretion in ruling on the 
issue of prejudice resulting from the reading by jurors 
of news articles concerning the trial. . . . Generaliza- 
tions beyond that statement are not profitable, because 
each case must turn on its special facts. We have here 
the exposure of jurors to information of a character which 
the trial judge ruled was so prejudicial it could not be 
directly offered as evidence. The prejudice to the defend- 
ant is almost certain to be as great when that evidence 
reaches the jury through news accounts as when it is a part 
of the prosecution's evidence. ... It may indeed be 
greater for it is then not tempered by protective pro- 
cedures." Marshall v. United States, 360 U.S. 310, 312-13, 
3 L.Ed.2d 1250, 1252, 79 S.Ct. 1171, 1173 (1959). 

"The experienced trial lawyer knows that an adverse 
public opinion is a tremendous disadvantage to the de- 
fense of his client. Although grand jurors conduct their 
deliberations in secret, they are selected from the body 
of the public. They are likely to know what the general 
public knows and to reflect the public attitude. Trials 
are open to the public, and aroused public opinion respect- 
ing the merits of a legal controversy creates a court room 
atmosphere which, without any vocal expression in the 
presence of the petit jury, makes itself felt and has its 
effect upon the action of the petit jury. Our fundamental 
concepts of justice and our American sense of fair play 
require that the petit jury shall be composed of persons 
with fair and impartial minds and without preconceived 
views as to the merits of the controversy, and that it shall 
determine the issues presented to it solely upon the evi- 
dence adduced at the trial and according to the law given 
in the instructions of the trial judge. 


The release by a lawyer of out-of-court statements 
regarding an anticipated or pending trial may im- 
properly affect the impartiality of the tribunal. 56 
For these reasons, standards for permissible and 
prohibited conduct of a lawyer with respect to trial 
publicity have been established. 

EC 7-34 The impartiality of a public servant in 
our legal system may be impaired by the receipt 
of gifts or loans. A lawyer, 57 therefore, is never 
justified in making a gift or a loan to a judge, 
a hearing officer, or an official or employee of a 
tribunal.58 

EC 7-35 All litigants and lawyers should have ac- 
cess to tribunals on an equal basis. Generally, in 
adversary proceedings a lawyer should not com- 
municate with a judge relative to a matter pend- 
ing before, or which, is to be brought before, a 
tribunal over which he presides in circumstances 
which might have the effect or give the appear- 
ance of granting undue advantage to one party. 59 
For example, a lawyer should not communicate 
with a tribunal by a writing unless a copy thereof 
is promptly delivered to opposing counsel or to 
the adverse party if he is not represented by a 
lawyer. Ordinarily an oral communication by a 
lawyer with a judge or hearing officer should be 
made only upon adequate notice to opposing coun- 
sel, or, if there is none, to the opposing party. A. 
lawyer should not condone or lend himself to pri- 
vate importunities by another with a judge or 
hearing officer on behalf of himself or his client. 

EC 7-36 Judicial hearings ought to be conducted 
through dignified and orderly procedures designed 
to protect the rights of all parties. Although a 
lawyer has the duty to represent his client zealous- 

"While we may doubt that the effect of public opinion 
would sway or bias the judgment of the trial judge in an 
equity proceeding, the defendant should not be called upon 
to run that risk and the trial court should not have his 
work made more difficult by any dissemination of state- 
ments to the public that would be calculated to create a 
public demand for a particular judgment in a prospective 
or pending case." ABA Opinion 199 (1940). 

Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 14 L. 
Ed. 2d 543, 551, 85 S.Ct. 1628, 1634 (1965), rehearing denied , 
381 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18 (1965). 

56 See ABA Canon 20. 

57 Canon 3 observes that a lawyer "deserves rebuke and 
denunciation for any device or attempt to gain from a 
Judge special personal consideration or favor." 

See ABA Canon 32. 

58 "Judicial Canon 32 provides : 

" 'A judge should not accept any presents or favors 
from litigants, or from lawyers practicing before him or 
from others whose interests are likely to be submitted to 
him for judgment.' 

"The language of this Canon is perhaps broad enough 
to prohibit campaign contributions by lawyers, practicing 
before the court upon which the candidate hopes to sit. 
However, we do not think it was intended to prohibit 
such contributions when the candidate is obligated, by 
force of circumstances over which he has no control, to 
conduct a campaign, the expense of which exceeds that 
which he should reasonably be expected to personally 
bear!" ABA Opinion 226 (1941). 

59 See ABA Canons 3 and 32 . 


LVII 



CODE OF PROFESSIONAL RESPONSIBILITY 


ly, he should not engage in any conduct that of- 
fends the dignity and decorum of proceedings. 60 
While maintaining his independence, a lawyer 
should be respectful, courteous, and above-board 
in his relations with a judge or hearing officer be- 
fore whom he appears. 61 He should avoid undue 
solicitude for the comfort or convenience of judge 
or jury and should avoid any other conduct cal- 
culated to gain special consideration. 

EC 7-37 In adversary proceedings, clients are 
litigants and though ill feeling may exist between 
clients, such ill feeling should not influence a law- 
yer in his conduct, attitude, and demeanor towards 
opposing lawyers. 62 A lawyer should not make 
unfair or derogatory personal reference to op- 
posing counsel. Haranguing and offensive tactics 
by lawyers interfere with the orderly administra- 
tion of justice and have no proper place in our 
legal system. 

EC 7-38 A lawyer should be courteous to op- 
posing counsel and should accede to reasonable 
requests regarding court proceedings, settings, 
continuances, waiver of procedural formalities, and 
similar matters which do not prejudice the rights 
of his client. 63 He should follow local customs 
of courtesy or practice, unless he gives timely no- 
tice to opposing counsel of his intention not to do 
so. 64 A lawyer should be punctual in fulfilling 
all professional commitments. 65 

EC 7-39 In the final analysis, proper functioning 
of the adversary system depends upon coopera- 
tion between lawyers and tribunals in utilizing pro- 
cedures which will preserve the impartiality of 
tribunals and make their decisional processes 
prompt and just, without impinging upon the ob- 
ligation of lawyers to represent their clients zeal- 
ously within the framework of the law. 

DISCIPLINARY RULES 
DR 7-101 Representing a Client Zealously. 

(A) A lawyer shall not intentionally: 66 

(1) Fail to seek the lawful objectives of his 
client through reasonably available 
means 67 permitted by law and the Dis- 
ciplinary Rules, except as provided by 
DR 7- 10 1(B). A lawyer does not violate 
this Disciplinary Rule, however, by ac- 
ceding to reasonable requests of opposing 
counsel which do not prejudice the rights 
of his client, by being punctual in ful- 
filling all professional commitments, by 
avoiding offensive tactics, or by treating 

60 Cf. ABA Canon 18. 

61 See ABA Canons 1 and 3. 

62 See ABA Canon 17. 

63 See ABA Canon 24. 

64 See ABA Canon 25. 

05 See ABA Canon 21. 

66 See ABA Canon 15. 

67 See ABA Canons 5 and 15 cf. ABA Canons 4 and 32. 

LVIII 


with courtesy and consideration all per- 
sons involved in the legal process. 

(2) Fail to carry out a contract of employ- 
ment entered into with a client for pro- 
fessional services, but he may withdraw 
as permitted under DR 2-110, DR 5-102, 
and DR 5-105. 

(3) Prejudice or damage his client during the 
course of the professional relationship 68 
except as required under DR 7- 102(B). 

( B) In his representation of a client, a lawyer 

may: 

(1) Where permissible, exercise his profes- 
sional judgment to waive or fail to as- 
sert a right or position of his client. 

(2) Refuse to aid or participate in conduct 
that he believes to be unlawful, even 
though there is some support for an ar- 
gument that the conduct is legal. 

DR 7-102 Representing a Client Within the 
Bounds of the Law. 

(A) In his representation of a client, a lawyer 

shall not: 

(1) File a suit, assert a position, conduct & 
defense, delay a trial, or take other ac- 
tion on behalf of his client when he knows 
or when it is obvious that such action 
would serve merely to harass or ma- 
liciously injure another. 69 

(2) Knowingly advance a claim or defense 
that is unwarranted under existing law, 
except that he may advance such claim 
or defense if it can be supported by good 
faith argument for an extension, modifi- 
cation, or reversal of existing law. 

(3) Conceal or knowingly fail to disclose that 
which he is required by law to reveal. 

(4) Knowingly use perjured testimony or 
false evidence. 70 

(5) Knowingly make a false statement of law 
or fact. 

(6) Participate in the creation or preservation 
of evidence when he knows or it is ob- 
vious that the evidence is false. 

(7) Counsel or assist his client in conduct 
that the lawyer knows to be illegal or 
fraudulent. 

(8) Knowingly engage in other illegal con- 
duct or conduct contrary to a Disciplin- 
ary Rule. 

( B) A lawyer who receives information clearly 

establishing that: 

(1) His client has, in the course of the rep- 
resentation, perpetrated a fraud upon a 
person or tribunal shall promptly call 

68 Cf. ABA Canon 24. 

69 sel ABA Canon 30. 

70 Cf. ABA Canons 22 and 29. 



CODE OF PROFESSIONAL RESPONSIBILITY 


upon his client to rectify the same, and 
if his client refuses or is unable to do so, 
he shall reveal the fraud to the affected 
person or tribunal: a 

(2) A person other than his client has per- 
petrated a fraud upon a tribunal shall 
promptly reveal the fraud to the tribu- 
nal 12 

DR 7-103 Performing the Duty of Public Pros- 
ecutor or Other Government Law- 
yer.73 

(A) A public prosecutor or other government law- 
yer shall not institute or cause to be insti- 
tuted criminal charges when he knows or it 
is obvious that the charges are not supported 
by probable cause. 

(B) A public prosecutor or other government law- 
yer in criminal litigation shall make timely 
disclosure to counsel for the defendant, or 
to the defendant if he has no counsel, of the 
existence of evidence, known to the prosecu- 
tor or other government lawyer, that tends 
to negate the guilt of the accused, mitigate 
the degree of the offense, or reduce the pun- 
ishment. 

DR 7-104 Communicating With One of Adverse 
Interest. 74 

(A) During the course of his representation of a 
client a lawyer shall not: 

(1) Communicate or cause another to com- 
municate on the subject of the representa- 
tion with a party he knows to be rep- 
resented by a lawyer in that matter un- 
less he has the prior consent of the law- 
yer representing such other party 73 or is 
authorized by law to do so. 

(2) Give advice to a person who is not rep- 
resented by a lawyer, other than the ad- 

71 See ABA Canon 41; cf. Hinds v. State Bar, 19 Cal. 2d 
87, 92-93, 119 P.2d 134, 137 (1941) ; but see ABA Opinion 
287 (1953) and Texas Canon 38. Also see Code of Pro- 
fessional Responsibility, DR 4- 10 1(C) (2). 

72 See Precision Inst. Mfg. Co. v. Automotive M. M. Co., 
324 U.S. 806, 89 L.Ed. 1381, 65 S.Ct. 993 (1945). 

73 Cf. ABA Canon 5. 

74 "Rule 1 2. ... A member of the State Bar shall 
not communicate with a party represented by counsel up- 
on a subject of controversy, in the absence and without 
the consent of such counsel. This rule shall not apply 
to communications with a public officer, board, committee 
or body." Cal. Business and Professions Code § 6076 (West 
1962). 

75 See ABA Canon 9; cf. ABA Opinions 124 (1934), 108 
(1934), 95 (1933), and 75 (1932) ; also see In re Schwabe, 
242 Or. 169, 174-75, 408 P.2d 922, 924 (1965). 

"It is clear from the earlier opinions of this committee 
that canon 9 is to be construed literally and does not al- 
low a communication with an opposing party, without the 
consent of his counsel, though the purpose merely be to 
investigate the facts. Opinions 117, 95, 66,” ABA Opinion 
187 (1938). 


vice to secure counsel, 76 if the interests 
of such person are or have a reasonable 
possibility of being in conflict with the 
interests of his client.77 

DR 7-105 Threatening Criminal Prosecution. 

(A) A lawyer shall not present, participate in pre- 
senting, or theaten to present criminal charg- 
es solely to obtain an advantage in a civil 
matter. 

DR 7-106 Trial Conduct. 

(A) A lawyer shall not disregard or advise his 
client to disregard a standing rule of a tribu- 
nal or a ruling of a tribunal made in the 
course of a proceeding, but he may take ap- 
propriate steps in good faith to test the valid- 
ity of such rule or ruling. 

(B) In presenting a matter to a tribunal, a law- 
yer shall disclose: 78 

(1) Legal authority in the controlling juris- 
diction known to him to be directly ad- 
verse to the position of his client and 
which is not disclosed by opposing cotm- 
sel.79 

(2) Unless privileged or irrelevant, the iden- 
tities of the clients he represents and of 
the persons who employed him 80 

76 Cf. ABA Opinion 102 (1933). 

77 Cf. ABA Canon 9 and ABA Opinion 58 (1931). 

78 Cf Note, 38 Texas L.Rev. 107, 108-09 (1959). 

79 "In the brief summary in the 1947 edition of the Com- 
mittee's decisions (p. 17), Opinion 146 was thus sum- 
marized : Opinion 1 46 — A lawyer should disclose to the 
court a decision directly adverse to his client's case that is 
unknown to his adversary. 

"We would not confine the Opinion to 'controlling au- 
thorities' — i.e., those decisive of the pending case — but, in 
accordance with the tests hereafter suggested, would apply 
it to a decision directly adverse to any proposition of law 
on which the lawyer expressly relies, which would rea- 
sonably be considered important by the judge sitting on 
the case. 

"... The test in every case should be: Is the deci- 
sion which opposing counsel has overlooked one which the 
court should clearly consider in deciding the case? Would 
a reasonable judge properly feel that a lawyer who ad- 
vanced, as the law, a proposition adverse to the undis- 
closed decision, was lacking in candor and fairness to him? 
Might the judge consider himself misled by an implied 
representation that the lawyer knew of no adverse au- 
thority?" ABA Opinion 280 (1949). 

so "The authorities are substantially uniform against any 
privilege as applied to the fact of retainer or identity of 
the client. The privilege is limited to confidential com- 
munications, and a retainer is not a confidential communi- 
cation, although it cannot come into existence without 
some communication between the attorney and the — at 
that stage prospective — client." United States v. Pape, 144 
F.2d 778, 782 (2d Cir. 1944), cert, denied, 323 U.S. 752, 89 
L.Ed. 2d 602, 65 S.Ct. 86 (1944). 


"To be sure, there may be circumstances under which 
the identification of a client may amount to the prejudicial 
disclosure of a confidential communication, as where the 

LIX 



CODE OF PROFESSIONAL RESPONSIBILITY 


( C) In appearing in his professional capacity be- 
fore a tribunal, a lawyer shall not: 

(1) State or allude to any matter that he has 
no reasonable basis to believe is relevant 
to the case or that will not be supported 
by admissible evidence. 81 

(2) Ask any question that he has no reason- 
able basis to believe is relevant to the 
case and that is intended to degrade a 
witness or other person. 82 

(3) Assert his personal knowledge of the 
facts in issue, except when testifying as 
a witness. 

(4) Assert his personal opinion as to the just- 
ness of a cause, as to the credibility of a 
witness, as to the culpability of a civil 
litigant, or as to the guilt or innocence 
of an accused; 83 but he may argue, on 
his analysis of the evidence, for any posi- 
tion or conclusion with respect to the 
matters stated herein. 

(5) Fail to comply with known local cus- 
toms of courtesy or practice of the bar 
or a particular tribunal without giving to 
opposing counsel timely notice of his in- 
tent not to comply. 84 

substance of a disclosure has already been revealed but 
not its source." Colton v. United States, 306 F.2d 633, 637 
(2d Cir. 1962). 

81 See ABA Canon 22; cf. ABA Canon 17. 

"The rule allowing counsel when addressing the jury the 
widest latitude in discussing the evidence and presenting 
the client's theories falls far short of authorizing the state- 
ment by counsel of matter not in evidence, or indulging 
in argument founded on no proof, or demanding verdicts 
for purposes other than the just settlement of the matters 
at issue between the litigants, or appealing to prejudice or 
passion. The rule confining counsel to legitimate argu- 
ment is not based on etiquette, but on justice. Its viola- 
tion is not merely an overstepping of the bounds of pro- 
priety, but a violation of a party's rights. The jurors 
must determine the issues upon the evidence. Counsel's 
address should help them do this, not tend to lead them 
astray." Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 
207 App.Div. 787, 790-91, 202 N.Y.S. 611, 614 (1924). 

82 Cf. ABA Canon 18. 

"§ 6068. • . . It is the duty of an attorney : 

"(f) To abstain from all offensive personality, and to 
advance no fact prejudicial to the honor or reputation of 
a party or witness, unless required by the justice of the 
cause with which he is charged." Cal. Business and Pro- 
fessions Code § 6068 (West 1962). 

83 "The record in the case at bar was silent concerning 
the qualities and character of the deceased. It is especially 
improper, in addressing the jury in a murder case, for 
the prosecuting attorney to make reference to his knowl- 
edge of the good qualities of the deceased where there 
is no evidence in the record bearing upon his character. 

. . A prosecutor should never inject into his argu- 
ment evidence not introduced at the trial." People v. 
Dukes, 12 111. 2d 334, 341, 146 N.E.2d 14, 17-18 (1957). 

84 "A lawyer should not ignore known customs or prac- 
tice of the Bar or of a particular Court, even when the 
law permits, without giving timely notice to the opposing 
counsel." ABA Canon 25. 


(6) Engage in undignified or discourteous 
conduct which is degrading to a tribunal. 

(7) Intentionally or habitually violate any es- 
tablished rule of procedure or of evi- 
dence. 

DR 7-107 Trial Publicity.85 

(A) A lawyer participating in or associated with 

the investigation of a criminal matter shall 
not make or participate in making an extra- 
judicial statement that a reasonable person 
would expect to be disseminated by means 
of public communication and that does more 
than state without elaboration: 

(1) Information contained in a public record. 

(2) That the investigation is in progress. 

(3) The general scope of the investigation in- 
cluding a description of the offense and, 
if permitted by law, the identity of the 
victim. 

(4) A request for assistance in apprehending 
a suspect or assistance in other matters 
and the information necessary thereto. 

(5) A warning to the public of any dangers. 

( B) A lawyer or law firm associated with the 
prosecution or defense of a criminal matter 
shall not, from the time of the filing of a com- 
plaint, information, or indictment, the issu- 
ance of an arrest warrant, or arrest until 
the commencement of the trial or disposition 

as The provisions of Sections (A), (B), (C), and (D) of 
this Disciplinary Rule incorporate the fair trial-free press 
standards which apply to lawyers as adopted by the ABA. 
House of Delegates, Feb. 19, 1968, upon the recommenda- 
tion of the Fair Trial and Free Press Advisory Committee 
of the ABA Special Committee on Minimum Standards for 
the Administration of Criminal Justice. 

Cf. ABA Canon 20; see generally ABA Advisory Com- 
mittee on Fair Trial and Free Press, Standards Relating 
to Fair Trial and Free Press (1966). 

"From the cases coming here we note that unfair and 
prejudicial news comment on pending trials has become in- 
creasingly prevalent. Due process requires that the ac- 
cused receive a trial by an impartial jury free from out- 
side influences. Given the pervasiveness of modern com- 
munications and the difficulty of effacing prejudicial pub- 
licity from the minds of the jurors, the trial courts must 
take strong measures to ensure that the balance is never 
weighed against the accused. And appellate tribunals 
have the duty to make an independent evaluation of the 
circumstances. Of course, there is nothing that prescribes 
the press from reporting events that transpire in the court- 
room. But where there is a reasonable likelihood that 
prejudicial news prior to trial will prevent a fair trial, the 
judge should continue the case until the threat abates, or 
transfer it to another county not so permeated with pub- 
licity. • • • The courts must take such steps by rule 
and regulation that will protect their processes from preju- 
dicial outside interferences. Neither prosecutors, counsel 
for defense, the accused, witnesses, court staff nor enforce- 
ment officers coming under the jurisdiction of the court 
should be permitted to frustrate its function. Collabora- 
tion between counsel and the press as to information affect- 
ing the fairness of a criminal trial is not only subject to 
regulation, but is highly censurable and worthy of dis- 
ciplinary measures." Sheppard v. Maxwell, 384 U.S. 333, 
362-63, 16 L.Ed.2d 600, 620, 86 S.Ct. 1507, 1522 (1966). 


LX 



CODE OF PROFESSIONAL RESPONSIBILITY 


without trial, make or participate in making 
an extrajudicial statement that a reasonable 
person would expect to be disseminated by 
means of public communication and that re- 
lates to: 

(1) The character, reputation, or prior crim- 
inal record (including arrests, indict- 
ments, or other charges of crime) of the 
accused. 

(2) The possibility of a plea of guilty to the 
offense charged or to a lesser offense. 

(3) The existence or contents of any confes- 
sion, admission, or statement given by 
the accused or his refusal or failure to 
make a statement. 

(4) The performance or results of any ex- 
aminations or tests or the refusal or fail- 
ure of the accused to submit to examina- 
tions or tests. 

(5) The identity, testimony, or credibility of 
a prospective witness. 

(6) Any opinion as to the guilt or innocence 
of the accused, the evidence, or the mer- 
its of the case. 

(C) DR 7- 107(B) does not preclude a lawyer dur- 

ing such period from announcing: 

(1) The name, age, residence, occupation, and 
family status of the accused. 

(2) If the accused has not been apprehended, 
any information necessary to aid in his 
apprehension or to warn the public of 
any dangers he may present. 

(3) A request for assistance in obtaining evi- 
dence. 

(4) The identity of the victim of the crime. 

(5) The fact, time, and place of arrest, re- 
sistance, pursuit, and use of weapons. 

(6) The identity of investigating and arrest- 
ing officers or agencies and the length 
of the investigation. 

(7) At the time of seizure, a description of 
the physical evidence seized, other than 
a confession, admission, or statement. 

(8) The nature, substance, or text of the 
charge. 

(9) Quotations from or references to public 
records of the court in the case. 

(10) The scheduling or result of any step in 
the judicial proceedings. 

(11) That the accused denies the charges made 
against him. 

(D) During the selection of a jury or the trial of 
a criminal matter, a lawyer or law firm asso- 
ciated with the prosecution or defense of a 
criminal matter shall not make or participate 
in making an extrajudicial statement that a 
reasonable person would expect to be dissemi- 
nated by means of public communication and 
that relates to the trial, parties, or issues in 
the trial or other matters that are reasonably 

LXI 


likely to interfere with a fair trial, except that 
he may quote from or refer without comment 
to public records of the court in the case. 

( E) After the completion of a trial or disposition 
without trial of a criminal matter and prior 
to the imposition of sentence, a lawyer or law 
firm associated with the prosecution or de- 
fense shall not make or participate in making 
an extrajudicial statement that a reasonable 
person would expect to be disseminated by 
public communication and that is reasonably 
likely to affect the imposition of sentence. 

(F) The foregoing provisions of DR 7-107 also ap- 

ply to professional disciplinary proceedings 
and juvenile disciplinary proceedings when 
pertinent and consistent with other law appli- 
cable to such proceedings. 

(G) A lawyer or law firm associated with a civil 
action shall not during its investigation or liti- 
gation make or participate in making an ex- 
trajudicial statement, other than a quotation 
from or reference to public records, that a 
reasonable person would expect to be dissemi- 
nated by means of public communication and 
that relates to: 

(1) Evidence regarding the occurrence or 
transaction involved. 

(2) The character, credibility, or criminal 
record of a party, witness, or prospec- 
tive witness. 

(3) The performance or results of any ex- 
aminations or tests or the refusal or 
failure of a party to submit to such. 

(4) His opinion as to the merits of the 
claims or defenses of a party, except as 
required by law or administrative rule. 

(5) Any other matter reasonably likely to 
interfere with a fair trial of the action. 

( H) During the pendency of an administrative 
proceeding, a lawyer or law firm associated 
therewith shall not make or participate in 
making a statement, other than a quotation 
from or reference to public records, that a 
reasonable person would expect to be dissemi- 
nated by means of public communication if 
it is made outside the official course of the 
proceeding and relates to: 

(1) Evidence regarding the occurrence or 
transaction involved. 

(2) The character, credibility, or criminal 
record of a party, witness, or prospec- 
tive witness. 

(3) Physical evidence or the performance 
or results of any examinations or tests 
or the refusal or failure of a party to 
submit to such. 

(4) His opinion as to the merits of the 
claims, defenses, or positions of an in- 
terested person. 

(5) Any other matter reasonably likely to 
interfere with a fair hearing. 



CODE OF PROFESSIONAL RESPONSIBILITY 


(I) The foregoing provisions of DR 7-107 do not 
preclude a lawyer from replying to charges 
of misconduct publicly made against him or 
from participating in the proceedings of legis- 
lative, administrative, or other investigative 
bodies, 

(J) A lawyer shall exercise reasonable care to pre- 
vent his employees and associates from mak- 
ing an extrajudicial statement that he would 
be prohibited from making under DR 7-107. 

DR 7-108 Communication with or Investigation 
of Jurors. 

( A) Before the trial of a case a lawyer connected 

therewith shall not communicate with or 
cause another to communicate with anyone 
he knows to be a member of the venire from 
which the jury will be selected for the trial 
of the case. 

(B) During the trial of a case: 

(1) A lawyer connected therewith shall not 
communicate with or cause another to 
communicate with any member of the 
jury.86 

(2) A lawyer who is not connected there- 
with shall not communicate with or 
cause another to communicate with a 
juror concerning the case. 

(C) DR 7- 108(A) and (B) do not prohibit a law- 
yer from communicating with veniremen or 
jurors in the course of official proceedings. 

(D) After discharge of the jury from further con- 

sideration of a case with which the lawyer 
was connected, the lawyer shall not ask ques- 
tions of or make comments to a member of 
that jury that are calculated merely to harass 
or embarrass the juror or to influence his ac- 
tions in future jury service. 87 

(E) A lawyer shall not conduct or cause, by finan- 

cial support or otherwise, another to conduct 
a vexatious or harassing investigation of ei- 
ther a venireman or a juror. 

(F) All restrictions imposed by DR 7-108 upon a 

lawyer also apply to communications with or 
investigations of members of a family of a 
venireman or a juror. 

( G) A lawyer shall reveal promptly to the court 
improper conduct by a venireman or a juror, 
or by another toward a venireman or a juror 
or a member of his family, of which the law- 
yer has knowledge. 

DR 7-109 Contact with Witnesses. 

(A) A lawyer shall not suppress any evidence that 
he or his client has a legal obligation to re- 
veal or produce. 88 

se. See ABA Canon 23. 

87 "Mt would be unethical for a lawyer to harass, en- 
tice, induce or exert influence on a juror to obtain his 

testimony." ABA Opinion 319 (1968). 

88 See ABA Canon 5. 


(B) A lawyer shall not advise or cause a person to 
secrete himself or to leave the jurisdiction of 
a tribunal for the purpose of making him un- 
available as a witness therein. 89 

(C) A lawyer shall not pay, offer to pay, or ac- 
quiesce in the payment of compensation to a 
witness contingent upon the content of his 
testimony or the outcome of the case. 90 But 
a lawyer may advance, guarantee, or ac- 
quiesce in the payment of: 

(1) Expenses reasonably incurred by a wit- 
ness in attending or testifying. 

(2) Reasonable compensation to a witness 
for his loss of time in attending or tes- 
tifying. 

(3) A reasonable fee for the professional 
services of an expert witness. 

DR 7-110 Contact with Officials. 91 

(A) A lawyer shall not give or lend any thing of 
value to a judge, official, or employee of a 
tribunal. 

(B) In an adversary proceeding, a lawyer shall 
not communicate, or cause another to com- 
municate, as to the merits of the cause with 
a judge or an official before whom the pro- 
ceeding is pending, except: 

(1) In the course of official proceedings in 
the cause. 

(2) In writing if he promptly delvers a 
copy of the writing to opposing counsel 
or to the adverse party if he is not rep- 
resented by a lawyer. 

(3) Orally upon adequate notice to oppos- 
ing counsel or to the adverse party if 
he is not represented by a lawyer. 

(4) As otherwise authorized by law. 92 
89 Cf. ABA Canon 5. 

"Reele IS. . . .A member of the State Bar shall not 
advise a person, whose testimony could establish or tend 
to establish a material fact, to avoid service of process, 
or secrete himself, or otherwise to make his testimony un- 
available." Cal. Business and Professions Code § 6076 (West 
1962). 

9” See In re O'Keefe, 49 Mont. 369, 142 P. 638 (1914). 

91 Cf. ABA Canon 3. 

92 "Recle IS. . . .A member of the State Bar shall 
not, in the absence of opposing counsel, communicate with 
or argue to a judge or judicial officer except in open court 
upon the merits of a contested matter pending before such 
judge or judicial officer ; nor shall he, without furnishing 
opposing counsel with a copy thereof, address a written 
communication to a judge or judicial officer concerning 
the merits of a contested matter pending before such judge 

or judicial officer. This rule shall not apply to ex parte 
matters." Cal. Business and Professions Code § 6076 (West 
1962). 


LXII 



CODE OF PROFESSIONAL RESPONSIBILITY 


CANON 8 

A Lawyer Should Assist in Improving 
the Legal System 

ETHICAL CONSIDERATIONS 

EC 8-1 Changes in human affairs and imperfec- 
tions in human institutions make necessary con- 
stant efforts to maintain and improve our legal 
system. ' This system should function in a man- 
ner that commands public respect and fosters the 
use of legal remedies to achieve redress of griev- 
ances. By reason of education and experience, 
lawyers are especially qualified to recognize de- 
ficiencies in the legal system and to initiate cor- 
rective measures therein. Thus they should par- 
ticipate in proposing and supporting legislation 
and programs to improve the system, 2 3 without 
regard to the general interests or desires of clients 
or former clients. 3 

EC 8-2 Rules of law are deficient if they are not 
just, understandable, and responsive to the needs 
of society. If a lawyer believes that the existence 
or absence of a rule of law, substantive or proce- 
dural, causes or contributes to an unjust result, 
he should endeavor by lawful means to obtain ap- 
propriate changes in the law. He should encour- 
age the simplification of laws and the repeal or 
amendment of laws that are outmoded. 4 Like- 

1 . [Another] task of the great lawyer is to do 
his part individually and as a member of the organized 
bar to improve his profession, the courts, and the law. 
As President Theodore Roosevelt aptly put it, 'Every man 
owes some of his time to the upbuilding of the profession 
to which he belongs.' Indeed, this obligation is one of 
the great things which distinguishes a profession from a 
business. The soundness and the necessity of President 
Roosevelt's admonition insofar as it relates to the legal 
profession cannot be doubted. The advances in natural 
science and technology are so startling and the velocity of 
change in business and in social life is so great that the 
law along with the other social sciences, and even human 
life itself, is in grave danger of being extinguished by new 
gods of its own invention if it does not awake from its 
lethargy. Vanderbilt, The Five Functions of the Lawyer: 
Service to Clients and the Public, 40 A.B.A.J. 31, 31-32 
(1954). 

2 See ABA Canon 29; Cf. Cheatham, The Lawyer's Role 
and Surroundings, 25 Rocky Mt.L.Rev. 405, 406-07 (1953). 

"The lawyer tempted by repose should recall the heavy 
costs paid by his profession when needed legal reform has 
to be accomplished through the initiative of public-spirited 
laymen. Where change must be thrust from without upon 
an unwilling Bar, the public's least flattering picture of 
the lawyer seems confirmed. The lawyer concerned for 
the standing of his profession will, therefore, interest him- 
self actively in the improvement of the law. In doing so 
he will not only help to maintain confidence in the Bar, 
but will have the satisfaction of meeting a responsibility 
inhering in the nature of his calling." Professional Re- 
sponsibility: Report of the Joint Conference, 44 A.B.A.J. 
1159,1217(1958). 

3 See Stayton, Cum Honore Off icium, 19 Tex.B.J. 765, 
766 (1956) ; Professional Responsibility: Report of the 

Joint Conference, 44 A.B.A.J. 1159, 1162 (1958) ; and Paul, 

The Lawyer as a Tax Adviser, 25 Rocky Mt.L.Rev. 412, 

433-34 (1953). 


wise, legal procedures should be improved when- 
ever experience indicates a change is needed. 

EC 8-3 The fair administration of justice re- 
quires the availability of competent lawyers. 
Members of the public should be educated to rec- 
ognize the existence of legal problems and the re- 
sultant need for legal services, and should be pro- 
vided methods for intelligent selection of counsel. 
Those persons unable to pay for legal services 
should be provided needed services. Clients and 
lawyers should not be penalized by undue geo- 
graphical restraints upon representation in legal 
matters, and the bar should address itself to im- 
provements in licensing, reciprocity, and admission 
procedures consistent with the needs of modern 
commerce. 

EC 8-4 Whenever a lawyer seeks legislative or 
administrative changes, he should identify the ca- 
pacity in which he appears, whether on behalf of 
himself, a client, or the public. 5 A lawyer may 
advocate such changes on behalf of a client even 
though he does not agree with them. But when 
a lawyer purports to act on behalf of the public, 
he should espouse only those changes which he 
conscientiously believes to be in the public inter- 
est. 

EC 8-5 Fraudulent, deceptive, or otherwise ille- 
gal conduct by a participant in a proceeding be- 
fore a tribunal or legislative body is inconsistent 
with fair administration of justice, and it should 
never be participated in or condoned by lawyers. 
Unless constrained by his obligation to preserve 
the confidences and secrets of his client, a lawyer 
should reveal to appropriate authorities any 
knowledge he may have of such improper conduct. 

EC 8-6 Judges and administrative officials hav- 
ing adjudicatory powers ought to be persons of 
integrity, competence, and suitable temperament. 
Generally, lawyers are qualified, by personal ob- 
servation or investigation, to evaluate the qualifi- 
cations of persons seeking or being considered for 
such public offices, and for this reason they have 
a special responsibility to aid in the selection of 
only those who are qualified. 6 It is the duty of 

improvement of the law. The special obligation of the 
profession with respect to legal reform rests on considera- 
tions too obvious to require enumeration. Certainly it is 
the lawyer who has both the best chance to know when 
the law is working badly and the special competence to 
put it in order." Professional Responsibility: Report of 
the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958). 

5 "Rccle 1 ^7. . . .A member of the State Bar shall 
not communicate with, or appear before, a public officer, 
board, committee or body, in his professional capacity, 
without first disclosing that he is an attorney representing 
interests that may be affected by action of such officer, 
board, committee or body." Cal. Business and Professions 
Code § 6076 (West 1962). 

6 See ABA Canon 2 . 

"Lawyers are better able than laymen to appraise ac- 
curately the qualifications of candidates for judicial of- 
fice. It is proper that they should make that appraisal 
known to the voters in a proper and dignified manner. A 
lawyer may with propriety endorse a candidate for judicial 
office and seek like endorsement from other lawyers. But 


4 "There are few great figures in the history of the Bar 
who have not concerned themselves with the reform and 

LXIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


lawyers to endeavor to prevent political consider- 
ations from outweighing judicial fitness in the 
selection of judges. Lawyers should protest ear- 
nestly against the appointment or election of those 
who are unsuited for the bench and should strive 
to have elected 7 or appointed thereto only those 
who are willing to forego pursuits, whether of a 
business, political, or other nature, that may inter- 
fere with the free and fair consideration of ques- 
tions presented for adjudication. Adjudicatory of- 
ficials, not being wholly free to defend themselves, 
are entitled to receive the support of the bar 
against unjust criticism. 8 While a lawyer as a 
citizen has a right to criticize such officials public- 
ly, 9 he should be certain of the merit of his com- 
plaint, use appropriate language, and avoid petty 
criticisms, for unrestrained and intemperate state- 
ments tend to lessen public confidence in our legal 
system. 19 Criticisms motivated by reasons other 
than a desire to improve the legal system are not 
justified. 

EC 8-7 Since lawyers are a vital part of the legal 
system, they should be persons of integrity, of 
professional skill, and of dedication to the im- 

the lawyer who endorses a judicial candidate or seeks 
that endorsement from other lawyers should be actuated 
by a sincere belief in the superior qualifications of the 
candidate for judicial service and not by personal or sel- 
fish motives; and a lawyer should not use or attempt to 
use the power or prestige of the judicial office to secure 
such endorsement. On the other hand, the lawyer whose 
endorsement is sought, if he believes the candidate lacks 
the essential qualifications for the office or believes the 
opposing candidate is better qualified, should have the 
courage and moral stamina to refuse the request for en- 
dorsement." ABA Opinion 189 (1938). 

7 "[W]e are of the opinion that, whenever a candidate 
for judicial office merits the endorsement and support of 
lawyers, the lawyers may make financial contributions 
toward the campaign if its cost, when reasonably conduct- 
ed, exceeds that which the candidate would be expected 
to bear personally." ABA Opinion 226 (1941). 

8 See ABA Canon 1 . 

9 "Citizens have a right under our constitutional system 
to criticize governmental officials and agencies. Courts 
are not, and should not be, immune to such criticism." 
Konigsberg v. State 'Bar of California, 353 U.S. 252, 269 
(1957). 

10 "[EJvery lawyer, worthy of respect, realizes that pub- 
lic confidence in our courts is the cornerstone of our gov- 
ernmental structure, and will refrain from unjustified at- 
tack on the character of the judges, while recognizing the 
duty to denounce and expose a corrupt or dishonest judge." 
Kentucky State Bar Ass'n v. Lewis, 282 S.W.2d 321, 326 
(Ky. 1955). 

"We should be the last to deny that Mr. Meeker has the 
right to uphold the honor of the profession and to expose 
without fear or favor corrupt or dishonest conduct in the 
profession, whether the conduct be that of a judge or not. 

. . . However, this Canon [29] does not permit one 
to make charges which are false and untrue and unfounded 
in fact. When one's fancy leads him to make false charges, 
attacking the character and integrity of others, he does 
so at his peril. He should not do so without adequate 
proof of his charges and he is certainly not authorized to 
make careless, untruthful and vile charges against his 
professional brethren." In re Meeker, 76 N.M. 354, 364- 
65, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449, 
17 L.Ed.2d 510, 87 S.Ct. 613 (1967). 


provement of the system. Thus a lawyer should 
aid in establishing, as well as enforcing, stand- 
ards of conduct adequate to protect the public by 
insuring that those who practice law are qualified 
to do so. 

EC 8-8 Lawyers often serve as legislators or as 
holders of other public offices. This is highly de- 
sirable, as lawyers are uniquely qualified to make 
significant contributions to the improvement of 
the legal system. A lawyer who is a public offi- 
cer, whether full or part-time, should not engage 
in activities in which his personal or professional 
interests are or foreseeably may be in conflict with 
his official duties. 1' 

EC 8-9 The advancement of our legal system is 
of vital importance in maintaining the rule of law 
and in facilitating orderly changes; therefore, law- 
yers should encourage, and should aid in making, 
needed changes and improvements. 

DISCIPLINARY RULES 
DR 8-101 Action as a Public Official. 

(A) A lawyer who holds public office shall not: 

(1) Use his public position to obtain, or at- 
tempt to obtain, a special advantage in 
legislative matters for himself or for 
a client under circumstances where he 
knows or it is obvious that such action 
is not in the public interest. 

(2) Use his public position to influence, or 
attempt to influence, a tribunal to act 
in favor of himself or of a client. 

11 "Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6, 
and pass on questions concerning the propriety of the con- 
duct of an attorney who is a public officer, in represent- 
ing private interests adverse to those of the public body 
which he represents. The principle applied in those opin- 
ions is that an attorney holding public office should avoid 
all conduct which might lead the layman to conclude that 
the attorney is utilizing his public position to further 
his professional success or personal interests." ABA Opin- 
ion 192 (1939). 

"The next question is whether a lawyer-member of a 
legislative body may appear as counsel or co-counsel at 
hearings before a zoning board of appeals, or similar 
tribunal, created by the legislative group of which he is 
a member. We are of the opinion that he may practice 
before fact-finding officers, hearing bodies and commis- 
sioners, since under our views he may appear as counsel 
in the courts where his municipality is a party. Decisions 
made at such hearings are usually subject to administra- 
tive review by the courts upon the record there made. It 
would be inconsistent to say that a lawyer-member of a 
legislative body could not participate in a hearing at which 
the record is made, but could appear thereafter when the 
cause is heard by the courts on administrative review. This 
is subject to an important exception. He should not ap- 
pear as counsel where the matter is subject to review by 
the legislative body of which he is a member. . . . We 
are of the opinion that where a lawyer does so appear 
there would be conflict of interests between his duty as an 
advocate for his client on the one hand and the obligation 
to his governmental unit on the other." In re Becker, 16 
111. 2d 488, 494-95, 158 N.E.2d 753, 756-57 (1959). 

Cf ABA Opinions 186 (1938), 136 (1935), 118 (1934), and 
77 (1932). 


LXIV 



CODE OF PROFESSIONAL RESPONSIBILITY 


(3) Accept any thing of value from any 
person when the lawyer knows or it is 
obvious that the offer is for the pur- 
pose of influencing his action as a pub- 
lic official. 

DR 8-102 Statements Concerning Judges and 
Other Adjudicatory Officers. 12 

(A) A lawyer shall not knowingly make false 
statements of fact concerning the qualifica- 
tions of a candidate for election or appoint- 
ment to a judicial office. 

(B) A lawyer shall not knowingly make false ac- 
cusations against a judge or other adjudica- 
tory officer. 


CANON 9 

A Lawyer Should Avoid Even the 
Appearance of Professional 
Impropriety 

ETHICAL CONSIDERATIONS 

EC 9- 1 Continuation of the American concept 
that we are to be governed by rules of law re- 
quires that the people have faith that justice can 
be obtained through our legal system.' A lawyer 
should promote public confidence in our system 
and in the legal profession. 2 

EC 9-2 Public confidence in law and lawyers 
may be eroded by irresponsible or improper con- 
duct of a lawyer. On occasion, ethical conduct of 
a lawyer may appear to laymen to be unethical. 
In order to avoid misunderstandings and hence to 
maintain confidence, a lawyer should fully and 
promptly inform his client of material develop- 
ments in the matters being handled for the client. 
While a lawyer should guard against otherwise 
proper conduct that has a tendency to diminish 
public confidence in the legal system or in the 
legal profession, his duty to clients or to the pub- 
lic should never be subordinate merely because 
the full discharge of his obligation may be misun- 
derstood or may tend to subject him or the legal 
profession to criticism. When explicit ethical 
guidance does not exist, a lawyer should deter- 
mine his conduct by acting in a manner that pro- 
motes public confidence in the integrity and effi- 

12 Cf ABA Canons 1 and 2. 

1 "Integrity is the very breath of justice. Confidence 
in our law, our courts, and in the administration of jus- 
tice is our supreme interest. No practice must be permit- 
ted to prevail which invites towards the administration of 
justice a doubt or distrust of its integrity." Erwin M. 
Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 
868 (1928). 

2 "A lawyer should never be reluctant or too proud to 
answer unjustified criticism of his profession, of himself, 
or of his brother lawyer. He should guard the reputation 
of his profession and of his brothers as zealously as he 
guards his own." Rochelle and Payne, The Struggle for 
Public Understanding, 25 Texas B.J. 109, 162 (1962). 

Black's Law Dictionary 4th Ed. Rev.-e 


ciency of the legal system and the legal profes- 
sion. 3 

EC 9-3 After a lawyer leaves judicial office or 
other public employment, he should not accept 
employment in connection with any matter in 
which he had substantial responsibility prior to 
his leaving, since to accept employment would 
give the appearance of impropriety even if none 
exists. 1 

EC 9-4 Because the very essence of the legal sys- 
tem is to provide procedures by which matters can 
be presented in an impartial manner so that they 
may be decided solely upon the merits, any state- 
ment or suggestion by a lawyer that he can or 
would attempt to circumvent those procedures is 
detrimental to the legal system and tends to un- 
dermine public confidence in it. 

EC 9-5 Separation of the funds of a client from 
those of his lawyer not only serves to protect the 
client but also avoids even the appearance of im- 
propriety, and therefore commingling of such 
funds should be avoided. 

EC 9-6 Every lawyer owes a solemn duty to up- 
hold the integrity and honor of his profession; to 
encourage respect of the law and for the courts 
and the judges thereof; to observe the Code of 
Professional Responsibility; to act as a member 
of a learned profession, one dedicated to public 
service; to cooperate with his brother lawyers in 
supporting the organized bar through the devot- 
ing of his time, efforts, and financial support as 
his professional standing and ability reasonably 
permit; to conduct himself so as to reflect credit 
on the legal profession and to inspire the confi- 
dence, respect, and trust of his clients and of the 
public; and to strive to avoid not only profession- 
al impropriety but also the appearance of impro- 
priety. 5 

3 See ABA Canon 29. 

4 See ABA Canon 36. 

5 "As said in Opinion 49 of the Committee on Professional 
Ethics and Grievances of the American Bar Association, 
page 134: An attorney should not only avoid impropriety 
but should avoid the appearance of impropriety. ' " State 
ex rel, Nebraska State Bar Ass'n v. Richards, 165 Neb. 80. 
93, 84 N.W.2d 136, 145 (1957). 

"It would also be preferable that such contribution [to 
the campaign of a candidate for judicial office] be made 
to a campaign committee rather than to the candidate 
personally. In so doing, possible appearances of impro- 
priety would be reduced to a minimum." ABA Opinion 
226 (1941). 

"The lawyer assumes high duties, and has imposed upon 
him grave responsibilities. He may be the means of much 
good or much mischief. Interests of vast magnitude are 
entrusted to him; confidence is reposed in him ; life, lib- 
erty, character and property should be protected by him. 
He should guard, with jealous watchfulness, his own repu- 
tation, as well as that of his profession." People ex rel. 
Cutler v. Ford, 54 111. 520, 522 (1870), and also quoted in 
State Board of Law Examiners v. Sheldon, 43 Wyo. 522, 
526, 7 P.2d 226, 227 (1932). 

See ABA Opinion 150 (1936). 


LXV 



CODE OF PROFESSIONAL RESPONSIBILITY 


DISCIPLINARY RULES 

DR 9-101 Avoiding Even the Appearance of Im- 
propriety . 6 

(A) A lawyer shall not accept private employ- 
ment in a matter upon the merits of which 
he has acted in a judicial capacity.? 

(B) A lawyer shall not accept private employment 
in a matter in which he had substantial re- 
sponsibility while he was a public employee. 8 

(C) A lawyer shall not state or imply that he is 
able to influence improperly or upon irrele- 
vant grounds any tribunal, legislative body, 9 
or public official. 

6 Cf. Code of Professional Responsibility, EC 5-6. 

7 See ABA Canon 36. 

"It is the duty of the judge to rule on questions of law 
and evidence in misdemeanor cases and examinations in 
felony cases. That duty calls for impartial and unin- 
fluenced judgment, regardless of the effect on those im- 
mediately involved or others who may, directly or indirect- 
ly, be affected. Discharge of that duty might be greatly 
interfered with if the judge, in another capacity, were 
permitted to hold himself out to employment by those 
who are to be, or who may be, brought to trial in felony 
cases, even though he did not conduct the examination. 
His private interests as a lawyer in building up his clien- 
tele, his duty as such zealously to espouse the cause of 
his private clients and to defend against charges of crime 
brought by law-enforcement agencies of which he is a 
part, might prevent, or even destroy, that unbiased judi- 
cial judgment which is so essential in the administration 
of justice. 

"In our opinion, acceptance of a judgeship with the 
duties of conducting misdemeanor trials, and examinations 
in felony cases to determine whether those accused should 
be bound over for trial in a higher court, ethically bars the 
judge from acting as attorney for the defendants upon 
such trial, whether they were examined by him or by 
some other judge. Such a practice would not only dimin- 
ish public confidence in the administration of justice in 
both courts, but would produce serious conflict between 
the private interests of the judge as a lawyer, and of his 
clients, and his duties as a judge in adjudicating important 
phases of criminal processes in other cases. The public 
and private duties would be incompatible. The prestige 
of the judicial office would be diverted to private benefit, 
and the judicial office would be demeaned thereby." ABA 
Opinion 242 (1942). 

"A lawyer, who has previously occupied a judicial posi- 
tion or acted in a judicial capacity, should refrain from 
accepting employment in any matter involving the same 
facts as were involved in any specific question which he 
acted upon in a judicial capacity and, for the same rea- 
sons, should also refrain from accepting any employment 
which might reasonably appear to involve the same facts." 
ABA Opinion 49 (1931). 

See ABA Opinion 110 (1934). 

8 See ABA Opinions 135 (1935) and 134 (1935) ; cf. ABA 
Canon 36 and ABA Opinions 39 (1931) and 26 (1930). But 
see ABA Opinion 37 (1931). 

9 "[A statement by a governmental department or agency 
with regard to a lawyer resigning from its staff that in- 
cludes a laudation of his legal ability] carries implica- 
tions, probably not founded in fact, that the lawyer's 
acquaintance and previous relations with the personnel 
of the administrative agencies of the government place 
him in an advantageous position in practicing before such 
agencies. So to imply would not only represent what prob- 


DR 9-102 Preserving Identity of Funds and 
Property of a Client. 10 

(A) All funds of clients paid to a lawyer or law 

firm, other than advances for costs and ex- 
penses, shall be deposited in one or more 
identifiable bank accounts maintained in the 
state in which the law office is situated and 
no funds belonging to the lawyer or law firm 
shall be deposited therein except as follows: 

(1) Funds reasonably sufficient to pay 
bank charges may be deposited there- 
in. 

(2) Funds belonging in part to a client and 
in part presently or potentially to the 
lawyer or law firm must be deposited 
therein, but the portion belonging to 
the lawyer or law firm may be with- 
drawn when due unless the right of 
the lawyer or law firm to receive it is 
disputed by the client, in which event 
the disputed portion shall not be with- 
drawn until the dispute is finally re- 
solved. 

(B) A lawyer shall: 

(1) Promptly notify a client of the receipt 
of his funds, securities, or other prop- 
erties. 

(2) Identify and label securities and prop- 
erties of a client promptly upon receipt 
and place them in a safe deposit box 
or other place of safekeeping as soon 
as practicable. 

(3) Maintain complete records of all funds, 
securities, and other properties of a 
client coming into the possession of the 

ably is untrue, but would be highly reprehensible." ABA 
Opinion 184 (1938). 

10 See ABA Canon 1 1 . 

"Retie Q. ... A member of the State Bar shall not 
commingle the money or other property of a client with 
his own ; and he shall promptly report to the client the 
receipt by him of all money and other property belonging 
to such client. Unless the client otherwise directs in writ- 
ing, he shall promptly deposit his client's funds in a bank 
or trust company ... in a bank account separate 
from his own account and clearly designated as 'Clients' 
Funds Account' or Trust Funds Account' or words of 
similar import. Unless the client otherwise directs in writ- 
ing, securities of a client in bearer form shall be kept by 
the attorney in a safe deposit box at a bank or trust com- 
pany, . . . which, safe deposit box shall be clearly 
designated as 'Clients' Account' or 'Trust Account' or words 
of similar import, and be separate from the attorney's own 
safe deposit box." Cal. Business and Professions Code 
§ 6076 (West 1962). 

"[CJommingling is committed when a client's money is 
intermingled with that of his attorney and its separate 
identity lost so that it may be used for the attorney's per- 
sonal expenses or subjected to claims of his creditors. 

. . The rule against commingling was adopted to 
provide against the probability in some cases, the possi- 
bility in many cases, and the danger in all cases that such 
commingling will result in the loss of clients' money." 
Black v. State Bar, 57 Cal. 2d 219, 225-26, 368 P.2d 118, 122, 
18 Cal.Rptr. 518, 522 (1962). 


LXVI 



CODE OF PROFESSIONAL RESPONSIBILITY 


sistance to his client, 34 except that a lawyer 
may advance or guarantee the expenses of 
litigation, including court costs, expenses of 
investigation, expenses of medical examina- 
tion, and costs of obtaining and presenting 
evidence, provided the client remains ultimate- 
ly liable for such expenses. 

DR 5-104 Limiting Business Relations with a 
Client. 

(A) A lawyer shall not enter into a business trans- 
action with a client if they have differing 
interests therein and if the client expects the 
lawyer to exercise his professional judgment 
therein for the protection of the client, unless 
the client has consented after full disclosure. 

(B) Prior to conclusion of all aspects of the mat- 
ter giving rise to his employment, a lawyer 
shall not enter into any arrangement or un- 
derstanding with a client or a prospective 
client by which he acquires an interest hi pub- 
lication rights with respect to the subject 
matter of his employment or proposed em- 
ployment. 

DR 5-105 Refusing to Accept or Continue Em- 
ployment if the Interests of Another 
Client May Impair the Independent 
Professional Judgment of the Lawyer. 

(A) A lawyer shall decline proffered employment 
if the exercise of his independent professional 
judgment in behalf of a client will be or is 
likely to be adversely affected by the accept- 
ance of the proffered employment, 35 except 
to the extent permitted under DR 5-105(C).36 

(B) A lawyer shall not continue multiple employ- 
ment if the exercise of his independent pro- 
fessional judgment in behalf of a client will 
be or is likely to be adversely affected by his 
representation of another client, except to the 
extent permitted under DR 5- 105(C). 37 

(C) In the situations covered by DR 5- 105(A) and 
(B), a lawyer may represent multiple clients 
if it is obvious that he can adequately rep- 
resent the interest of each and if each con- 
sents to the representation after full disclo- 
sure of the possible effect of such representa- 
tion on the exercise of his independent pro- 
fessional judgment on behalf of each. 

34 See ABA Canon 42; cf. ABA Opinion 288 (1954). 

35 See ABA Canon 6; cf. ABA Opinions 167 (1937), 60 
(1931), and 40 (1931). 

36 ABA Opinion 247 (1942) held that an attorney could 
not investigate a night club shooting on behalf of one of 
the owner's liability insurers, obtaining the cooperation of 
the owner, and later represent the injured patron in an 
action against the owner and a different insurance com- 
pany unless the attorney obtain the "express consent of 
all concerned given after a full disclosure of the facts," 
since to do so would be to represent conflicting interests. 

See ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218 
(1941), 112 (1934), 83 (1932), and 86 (1932). 


( D) If a lawyer is required to decline employment 
or to withdraw from employment under DR 
5-105, no partner or associate of his or his 
firm may accept or continue such employ- 
ment. 

DR 5-106 Settling Similar Claims of Clients. 38 

(A) A lawyer who represents two or more clients 
shall not make or participate in the making 
of an aggregate settlement of the claims of 
or against his clients, unless each client has 
consented to the settlement after being ad- 
vised of the existence and nature of all the 
claims involved in the proposed settlement, of 
the total amount of the settlement, and of the 
participation of each person in the settlement. 

DR 5- 1 07 Avoiding Influence by Others Than 
the Client. 

(A) Except with the consent of his client after 
full disclosure, a lawyer shall not: 

(1) Accept compensation for his legal serv- 
ices from one other than his client. 

(2) Accept from one other than his client any 
thing of value related to his representa- 
tion of or his employment by his client. 39 

(B) A lawyer shall not permit a person who rec- 
ommends, employs, or pays him to render 
legal services for another to direct or regulate 
his professional judgment in rendering such 
legal services. 40 

(C) A lawyer shall not practice with or in the 
form of a professional corporation or asso- 
ciation authorized to practice law for a profit, 
if: 

(1) A non-lawyer owns any interest therein, 41 
except that a fiduciary representative of 
the estate of a lawyer may hold the stock 
or interest of the lawyer for a reasonable 
time during administration; 

(2) A non-lawyer is a corporate director or 
officer thereof; 42 or 

38 Cf. ABA Opinions 243 (1942) and 235 (1941). 

39 See ABA Canon 38. 

"A lawyer who receives a commission (whether delayed 
or not) from a title insurance company or guaranty fund 
for recommending or selling the insurance to his client, or 
for work done for the client or the company, without 
either fully disclosing to the client his financial interest 
in the transaction, or crediting the client's bill with the 
amount thus received, is guilty of unethical conduct." 
ABA Opinion 304 (1962). 

40 See ABA Canon 35; cf. ABA Opinion 237 (1941). 

"When the lay forwarder, as agent for the creditor, for- 
wards a claim to an attorney, the direct relationship of 
attorney and client shall then exist between the attorney 
and the creditor, and the forwarder shall not interpose 
itself as an intermediary to control the activities of the 
attorney." ABA Opinion 294 (1958). 

41 "Permanent beneficial and voting rights in the or- 
ganization set up to practice law, whatever its form, must 
be restricted to lawyers while the organization is engaged 
in the practice of law." ABA Opinion 303 (1961). 

42 "Canon 33 . . . promulgates underlying principles 
that must be observed no matter in what form of organiza- 


37 Cf. ABA Opinions 231 (1941) and 160 (1936). 


XLVII 



CODE OF PROFESSIONAL RESPONSIBILITY 


(3) A non-lawyer has the right to direct or 
control the professional judgment of a 
lawyer. 43 


CANON 6 

A Lawyer Should Represent a Client 
Competently 

ETHICAL CONSIDERATIONS 

EC 6- 1 Because of his vital role in the legal 
process, a lawyer should act with competence and 
proper care in representing clients. He should 
strive to become and remain proficient in his prac- 
tice 1 and should accept employment only in mat- 
ters which he is or intends to become competent 
to handle. 

EC 6-2 A lawyer is aided in attaining and main- 
taining his competence by keeping abreast of cur- 
rent legal literature and developments, participat- 

tion lawyers practice law. Its requirement that no person 
shall be admitted or held out as a practitioner or member 
who is not a member of the legal profession duly author- 
ized to practice, and amenable to professional discipline, 
makes it clear that any centralized management must be 
in lawyers to avoid a violation of this Canon." ABA Opin- 
ion 303 (1961). 

43 "There is no intervention of any lay agency between 
lawyer and client when centralized management provided 
only by lawyers may give guidance or direction to the 
services being rendered by a lawyer-member of the or- 
ganization to a client. The language in Canon 35 that a 
lawyer should avoid all relations which direct the per- 
formance of his duties by or in the interest of an inter- 
mediary refers to lay intermediaries and not lawyer in- 
termediaries with whom he is associated in the practice 
of law." ABA Opinion 303 (1961). 

1 "[W]hen a citizen is faced with the need for a lawyer, 
he wants, and is entitled to, the best informed counsel 
he can obtain. Changing times produce changes in our 
laws and legal procedures. The natural complexities of 
law require continuing intensive study by a lawyer if he 
is to render his clients a maximum of efficient service. 
And, in so doing, he maintains the high standards of the 
legal profession; and he also increases respect and con- 
fidence by the general public." Rochelle & Payne, The 
Struggle for Public Understanding, 25 Texas B.J. 109, 160 
(1962). 

"We have undergone enormous changes in the last fifty 
years within the lives of most of the adults living today 
who may be seeking advice. Most of these changes 
have been accompanied by changes and developments in 
the law. . . . Every practicing lawyer encounters these 
problems and is often perplexed with his own inability 
to keep up, not only with changes in the law, but also 
with changes in the lives of his clients and their legal 
problems. 

"To be sure, no client has a right to expect that his law- 
yer will have all of the answers at the end of his tongue 
or even in the back of his head at all times, But the 
client does have the right to expect that the lawyer will 
have devoted his time and energies to maintaining and 
improving his competence to know where to look for the 
answers, to know how to deal with the problems, and to 
know how to advise to the best of his legal talents and 
abilities." Levy & Sprague, Accounting and Law: Is Dual 
Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112 
(1966). 


ing in continuing legal education programs, 2 con- 
centrating in particular areas of the law, and by 
utilizing other available means . He has the addi- 
tional ethical obligation to assist in improving 
the legal profession, and he may do so by par- 
ticipating in bar activities intended to advance the 
quality and standards of members of the pro- 
fession. Of particular importance is the careful 
training of his younger associates and the giving 
of sound guidance to all lawyers who consult him. 
In short, a lawyer should strive at all levels to aid 
the legal profession in advancing the highest pos- 
sible standards of integrity and competence and 
to meet those standards himself. 

EC 6-3 While the licensing of a lawyer is evi- 
dence that he has met the standards then prevail- 
ing for admission to the bar, a lawyer generally 
should not accept employment in any area of the 
law in which he is not qualified. 3 However, he 
may accept such employment if in good faith he 
expects to become qualified through study and in- 
vestigation, as long as such preparation would not 
result in unreasonable delay or expense to his 
client. Proper preparation and representation 
may require the association by the lawyer of pro- 
fessionals in other disciplines. A lawyer offered 
employment in a matter in which he is not and 
does not expect to become so qualified should ei- 
ther decline the employment or, with the consent 
of his client, accept the employment and associate 
a lawyer who is competent in the matter. 4 

EC 6-4 Having undertaken representation, a law- 
yer should use proper care to safeguard the in- 
terests of his client. If a lawyer has accepted em- 
ployment in a matter beyond his competence but 
in which he expected to become competent, he 
should diligently undertake the work and study 
necessary to qualify himself. In addition to being 
qualified to handle a particular matter, his obli- 
gation to his client requires him to prepare ade- 
quately for and give appropriate attention to his 
legal work. 

EC 6-5 A lawyer should have pride in his pro- 
fessional endeavors. His obligation to act com- 
petently calls for higher motivation than that 
arising from fear of civil liability or disciplinary 
penalty. 

2 “The whole purpose of continuing legal education, so 
enthusiastically supported by the ABA, is to make it pos- 
sible for lawyers to make themselves better lawyers. 
But there are no nostrums for proficiency in the law; it 
must come through the hard work of the lawyer himself. 
To the extent that that work, whether it be in attending 
institutes or lecture courses, in studying after hours or in 
the actual day in and day out practice of his profession, 
can be concentrated within a limited field, the greater the 
proficiency and expertness that can be developed." Re- 
port of the Special Committee on Specialization and Spe- 
cialized Legal Education, 79 A.B.A.Rep. 582, 588 (1954). 

3 "If the attorney is not competent to skillfully and 
properly perform the work, he should not undertake the 
service." Degen v. Steinbrink, 202 App.Div. 477, 481, 195 
N.Y.S. 810, 814 (1922), aff'd mem., 236 N.Y. 669, 142 N.E. 
328 (1923). 

4 Cf. ABA Opinion 232 (1941). 


XLVIII 



CODE OF PROFESSIONAL RESPONSIBILITY 


EC 6-6 A lawyer should not seek, by contract or 
other means, to limit his individual liability to his 
client for his malpractice. A lawyer who handles 
the affairs of his client properly has no need to 
attempt to limit his liability for his professional 
activities and one who does not handle the affairs 
of his client properly should not be permitted to 
do so. A lawyer who is a stockholder in or is as- 
sociated with a professional legal corporation may, 
however, limit his liability for malpractice of his 
associates in the corporation, but only to the ex- 
tent permitted by law. 5 

DISCIPLINARY RULES 
DR 6-101 Failing to Act Competently. 

(A) A lawyer shall not: 

(1) Handle a legal matter which he knows 
or should know that he is not competent 
to handle, without associating with him 
a lawyer who is competent to handle it. 

(2) Handle a legal matter without prepara- 
tion adequate in the circumstances. 

(3) Neglect a legal matter entrusted to him. 6 

DR 6-102 Limiting Liability to Client. 

(A) A lawyer shall not attempt to exonerate him- 
self from or limit his liability to his client 
for his personal malpractice. 


CANON 7 

A Lawyer Should Represent a Client Zealously 
Within the Bounds of the Law 
ETHICAL CONSIDERATIONS 

EC 7-1 The duty of a lawyer, both to his client 1 
and to the legal system, is to represent his client 
zealously 2 within the bounds of the law, 3 which 

See ABA Opinion 303 (1961) ; cf. Code of Professional 
Responsibility, EC 2-11. 

6 The annual report for 1967-1968 of the Committee on 
Grievances of the Association of the Bar of the City of 
New York showed a receipt of 2,232 complaints ; of the 
828 offenses against clients, 76 involved conversion, 49 
involved "overreaching," and 452, or more than half of 
all such offenses, involved neglect. Annual Report of the 
Committee on Grievances of the Association of the Bar of 
the City of New York., N.Y.L.J., Sept. 12, 1968, at 4, col. 5. 

1 "The right to be heard would be, in many cases, of 
little avail if it did not comprehend the right to be heard 
by counsel. Even the intelligent and educated layman has 
small and sometimes no skill in the science of law. " 
Powell v. Alabama, 287 U.S. 45, 68-69, 77 L.Ed. 158, 170, 53 
S.Ct. 55, 64 (1932). 

2 Cf ABA Canon 4. 

"At times . . . [the tax lawyer] will be wise to dis- 
card some arguments and he should exercise discretion to 
emphasize the arguments which in his judgment are most 
likely to be persuasive. But this process involves legal 
judgment rather than moral attitudes. The tax lawyer 
should put aside private disagreements with Congressional 
and Treasury policies. His own notions of policy, and 
his personal view of what the law should be, are irrelevant. 
The job entrusted to him by his client is to use all his 
learning and ability to protect his client's rights, not to 
Black's Law Dictionary 4th Ed. Rev.— d 


includes Disciplinary Rules and enforceable pro- 

help in the process of promoting a better tax system. The 
tax lawyer need not accept his client's economic and 
social opinions, but the client is paying for technical at- 
tention and undivided concentration upon his affairs. He 
is equally entitled to performance unfettered by his attor- 
ney's economic and social predilections." Paul, The Law- 
yer as a Tcuc Adviser, 25 Rocky Mt. L. Rev. 412, 418 
(1953). 

3 See ABA Canons 15 and 32. 

ABA Canon 5, although only speaking of one accused 
of crime, imposes a similar obligation on the lawyer : 
"[T]he lawyer is bound, by all fair and honorable means, 
to present every defense that the law of the land per- 
mits, to the end that no person may be deprived of life 
or liberty, but by due process of law." 

"Any persuasion or pressure on the advocate which de- 
ters him from planning and carrying out the litigation on 
the basis of 'what, within the framework of the law, is 
best for my client's interest?' interferes with the obligation 
to represent the client fully within the law. 

"This obligation, in its fullest sense, is the heart of the 
adversary process. Each attorney, as an advocate, acts 
for and seeks that which in his judgment is best for 
his client, within the bounds authoritatively established. 
The advocate does not decide what is just in this case— 
he would be usurping the function of the judge and jury — 
he acts for and seeks for his client that which he is en- 
titled to under the law. He can do no less and properly 
represent the client." Thode, The Ethical Standard for 
the Advocate, 39 Texas L.Rev. 575, 584 (1961). 

"The [Texas public opinion] survey indicates that dis- 
trust of the lawyer can be traced directly to certain 
factors. Foremost of these is a basic misunderstanding 
of the function of the lawyer as an advocate in an ad- 
versary system. 

"Lawyers are accused of taking advantage of 'loopholes' 
and 'technicalities' to win. Persons who make this charge 
are unaware, or do not understand, that the lawyer is 
hired to win, and if he does not exercise every legiti- 
mate effort in his client's behalf, then he is betraying 
a sacred trust." Rochelle & Payne, The Struggle for 
Public Understanding, 25 Texas B.J. 109, 159 (1962). 

"The importance of the attorney's undivided allegiance 
and faithful service to one accused of crime, irrespective 
of the attorney's personal opinion as to the guilt of his 
client, lies in Canon 5 of the American Bar Association 
Canon of Ethics. 

"The difficulty lies, of course, in ascertaining whether 
the attorney has been guilty of an error of judgment, 
such as an election with respect to trial tactics, or 
has otherwise been actuated by his conscience or belief 
that his client should be convicted in any event. All 
too frequently courts are called upon to review actions 
of defense counsel which are, at the most, errors of 
judgment, not properly reviewable on habeas corpus un- 
less the trial is a farce and a mockery of justice which 
requires the court to intervene. . . . But when 
defense counsel, in a truly adverse proceeding, admits that 
his conscience would not permit him to adopt certain 
customary trial procedures, this extends beyond the realm 
of judgment and strongly suggests an invasion of con- 
stitutional rights." Johns v. Smyth, 176 F.Supp. 949, 952 
( E.D.Va. 1959), modified, United States ex rel. Wilkins v. 
Banmiller, 205 F.Supp. 123, 128, n. 5 (E.D.Pa. 1962), affd, 
325 F.2d 514 (3d Cir. 1963), cert, denied, 379 U.S. 847, 13 
L.Ed. 2d 51, 85 S.Ct. 87 (1964). 

"The adversary system in law administration bears a 
striking resemblance to the competitive economic system. 
In each we assume that the individual through partisan- 
ship or through self-interest will strive mightily for his 
side, and that kind of striving we must have. But neither 
system would be tolerable without restraints and modi- 


XLIX 



CODE OF PROFESSIONAL RESPONSIBILITY 


fessional regulations. 4 The professional respon- 
sibility of a lawyer derives from his membership 
in a profession which has the duty of assisting 
members of the public to secure and protect avail- 
able legal rights and benefits. In our government 
of laws and not of men, each member of our so- 
ciety is entitled to have his conduct judged and 
regulated in accordance with the law; s to seek 
any lawful objective 6 through legally permissible 
means; 7 and to present for adjudication any law- 
ful claim, issue, or defense. 

EC 7-2 The bounds of the law in a given case 
are often difficult to ascertain. 8 The language of 

fications, and at times without outright departures from 
the system itself. Since the legal profession is entrusted 
with the system of law administration, a part of its task 
is to develop in its members appropriate restraints without 
impairing the values of partisan striving. An accompany- 
ing task is to aid in the modification of the adversary sys- 
tem or departure from it in areas to which the system is 
unsuited." Cheatham, The Lawyer's Role and Surround- 
ings, 25 Rocky Mt. L.Rev. 405, 410 (1953). 

4 "Rule 4.15 prohibits, in the pursuit of a client's cause, 
'any manner of fraud or chicane' ; Rule 4.22 requires 'can- 
dor and fairness' in the conduct of the lawyer, and for- 
bids the making of knowing misquotations; Rule 4.47 
provides that a lawyer 'should always maintain his in- 
tegrity,' and generally forbids all misconduct injurious to 
the interests of the public, the courts, or his clients, and 
acts contrary to 'justice, honesty, modesty or good morals.' 
Our Commissioner has accurately paraphrased these rules 
as follows : 'An attorney does not have the duty to do 
all and whatever he can that may enable him to win his 
client's cause or to further his client's interest. His duty 
and efforts in these respects, although they should be 
prompted by his "entire devotion" to the interest of his 
client, must be within and not without the bounds of 
the law.' " In re Wines, 370 S.W.2d 328, 333 (Mo. 1963). 

See Note, 38 Texas L.Rev. 107, 110 (1959). 

5 "Under our system of government the process of ad- 
judication is surrounded by safeguards evolved from cen- 
turies of experience. These safeguards are not designed 
merely to lend formality and decorum to the trial of 
causes. They are predicated on the assumption that to se- 
cure for any controversy a truly informed and dispassion- 
ate decision is a difficult thing, requiring for its achieve- 
ment a special summoning and organization of human ef- 
fort and the adoption of measures to exclude the biases and 
prejudgments that have free play outside the courtroom. 

All of this goes for naught if the man with an unpopular 
cause is unable to find a competent lawyer courageous 
enough to represent him. His chance to have his day in 
court loses much of its meaning if his case is handicapped 
from the outset by the very kind of prejudgment our 
rules of evidence and procedure are intended to prevent." 
Professional Responsibility : Report of the Joint Con- 
ference, 44 A.B.A.J. 1159, 1216 (1958). 

6 -[i]t is . . . [the tax lawyer's] positive duty to 
show the client how to avail himself to the full of what 
the law permits. He is not the keeper of the Congres- 
sional conscience." Paul, The Lawyer as a Tax Adviser, 25 
Rocky Mt. L.Rev. 412, 418 (1953). 

7 See ABA Canons 15 and 30. 

"The fact that it desired to evade the law, as it is 
called, is immaterial, because the very meaning of a line 
in the law is that you intentionally may go as close to 
it as you can if you do not pass it . . .. It is a mat- 
ter of proximity and degree as to which minds will differ 
Justice Holmes, in Superior Oil Co. v. Missis- 

L 


legislative enactments and judicial opinions may 
be uncertain as applied to varying factual situa- 
tions. The limits and specific meaning of ap- 
parently relevant law may be made doubtful by 
changing or developing constitutional interpreta- 
tions, inadequately expressed statutes or judicial 
opinions, and changing public and judicial at- 
titudes. Certainty of law ranges from well-settled 
rules through areas of conflicting authority to 
areas without precedent. 

EC 7-3 Where the bounds of law are uncertain, 
the action of a lawyer may depend on whether he 
is serving as advocate or adviser. A lawyer may 
serve simultaneously as both advocate and adviser, 
but the two roles are essentially different. 9 In 
asserting a position on behalf of his client, an 
advocate for the most part deals with past con- 
duct and must take the facts as he finds them. 
By contrast, a lawyer serving as adviser primarily 
assists his client in determining the course of fu- 
ture conduct and relationships. While serving as 
advocate, a lawyer should resolve in favor of his 
client doubts as to the bounds of the law. 10 In 
serving a client as adviser, a lawyer in appropriate 

sippi, 280 U.S. 390, 395-96, 74 L. Ed. 504, 508, 50 S.Ct. 169, 
170 (1930). 

9 "Today's lawyers perform two distinct types of func- 
tions, and our ethical standards should, but in the main 
do not, recognize these two functions. Judge Philbrick 
McCoy recently reported to the American Bar Association 
the need for a reappraisal of the Canons in light of the 
new and distinct function of counselor, as distinguished 
from advocate, which today predominates in the legal pro- 
fession. 

• .In the first place, any revision of the canons 
must take into account and speak to this new and now 
predominant function of the lawyer. ... It is be- 
yond the scope of this paper to discuss the ethical stand- 
ards to be applied to the counselor except to state that 
in my opinion such standards should require a greater 
recognition and protection for the interest of the public 
generally than is presently expressed in the canons. 
Also, the counselor's obligation should extend to requiring 
him to inform and to impress upon the client a just solu- 
tion of the problem, considering all interests involved." 
Thode, The Ethical Standard for the Advocate, 39 Texas 
L.Rev. 575, 578-79 (1961). 

"The man who has been called into court to answer for 
his own actions is entitled to fair hearing. Partisan ad- 
vocacy plays its essential part in such a hearing, and the 
lawyer pleading his client's case may properly present it 
in the most favorable light. A similar resolution of doubts 
in one direction becomes inappropriate when the lawyer 
acts as counselor. The reasons that justify and even 
require partisan advocacy in the trial of a cause do not 
grant any license to the lawyer to participate as legal ad- 
visor in a line of conduct that is immoral, unfair, or of 
doubtful legality. In saving himself from this unworthy 
involvement, the lawyer cannot be guided solely by an un- 
reflective inner sense of good faith; he must be at pains 
to preserve a sufficient detachment from his client's in- 
terests so that he remains capable of a sound and objec- 
tive appraisal of the propriety of what his client proposes 
to do." Professional Responsibility : Report of the Joint 
Conference, 44 A.B.A.J, 1159, 1161 (1958). 

10 "[A] lawyer who is asked to advise his client 

. . may freely urge the statement of positions most 

favorable to the client just as long as there is reasonable 
basis for those positions." ABA Opinion 314 (1965). 



CODE OF PROFESSIONAL RESPONSIBILITY 


circumstances should give his professional opinion 
as to what the ultimate decisions of the courts 
would likely be as to the applicable law. 

Duty of the Lawyer to a Client 
EC 7-4 The advocate may urge any permissible 
construction of the law favorable to his client, 
without regard to his professional opinion as to 
the likelihood that the construction will ultimate- 
ly prevail, 11 His conduct is within the bounds of 
the law, and therefore permissible, if the position 
taken is supported by the law or is supportable 
by a good faith argument for an extension, modi- 
fication, or reversal of the law. However, a law- 
yer is not justified in asserting a position in liti- 
gation that is frivolous 12 

11 lawyer ... is not an umpire, but an ad- 
vocate. He is under no duty to refrain from making every 
proper argument in support of any legal point because 
he is not convinced of its inherent soundness. . . . 
His personal belief in the soundness of his cause or of the 
authorities supporting it, is irrelevant." ABA Opinion 280 
(1949). 

"Counsel apparently misconceived his role. It was his 
duty to honorably present his client's contentions in the 
light most favorable to his client. Instead he presumed 
to advise the court as to the validity and sufficiency of 
prisoner's motion, by letter. We therefore conclude that 
the prisoner had no effective assistance of counsel and 
remand this case to the District Court with instructions to 
set aside the Judgment, appoint new counsel to represent 
the prisoner if he makes no objection thereto, and proceed 
anew." McCartney v. United States, 343 F.2d 471, 472 (9th 
Cir. 1965). 

12 

"Here the court-appointed counsel had the transcript 
but refused to proceed with the appeal because he found 
no merit in it. . . . We cannot say that there was 
a finding of frivolity by either of the California courts or 
that counsel acted in any greater capacity than merely as 
amicus curiae which was condemned in Ellis, supra. 
Hence California's procedure did not furnish petitioner 
with counsel acting in the role of an advocate nor did it 
provide that full consideration and resolution of the mat- 
ter as is obtained when counsel is acting in that capacity. 

"The constitutional requirement of substantial equality 
and fair process can only be attained where counsel acts in 
the role of an active advocate in behalf of his client, as 
opposed to that of amicus curiae. The no-merit letter and 
the procedure it triggers do not reach that dignity. Coun- 
sel should, and can with honor and without conflict, be of 
more assistance to his client and to the court. His role 
as advocate requires that he support his client's appeal to 
the best of his ability. Of course, if counsel finds his 
case to be wholly frivolous, after a conscientious examina- 
tion of it, he should so advise the court and request per- 
mission to withdraw. That request must, however, be 
accompanied by a brief referring to anything in the record 
that might arguably support the appeal. A copy of coun- 
sel's brief should be furnished the indigent and time al- 
lowed him to raise any points that he chooses; the court — 
not counsel — then proceeds, after a full examination of all 
the proceedings, to decide whether the case is wholly 
frivolous. If it so finds it may grant counsel's request to 
withdraw and dismiss the appeal insofar as federal re- 
quirements are concerned, or proceed to a decision on 
the merits, if state law so requires. On the other hand, 
if it finds any of the legal points arguable on their merits 
(and therefore not frivolous) it must, prior to decision, 
afford the indigent the assistance of counsel to argue the 
appeal." Anders v. California, 386 U.S. 738, 744, 18 L.Ed. 


EC 7-5 A lawyer as adviser furthers the inter- 
est of his client by giving his professional opinion 
as to what he believes would likely be the ulti- 
mate decision of the courts on the matter at hand 
and by informingghis client of the practical effect 
of such decision.' He may continue in the rep- 
resentation of his client even though his client has 
elected to pursue a course of conduct contrary to 
the advice of the lawyer so long as he does not 
thereby knowingly assist the client to engage in 
illegal conduct or to take a frivolous legal posi- 
tion. A lawyer should never encourage or aid his 
client to commit criminal acts or counsel his client 
on how to violate the law and avoid punishment 
therefor. 14 

EC 7-6 Whether the proposed action of a lawyer 
is within the bounds of the law may be a perplex- 
ing question when his client is contemplating a 
course of conduct having legal consequence that 
vary according to the client's intent, motive, or de- 
sires at the time of the action. Often a lawyer 
is asked to assist his client in developing evidence 
relevant to the state of mind of the client at a 
particular time. He may properly assist his client 
in the development and preservation of evidence 
of existing motive, intent, or desire; obviously, he 
may not do anything furthering the creation or 
preservation of false evidence. In many cases a 
lawyer may not be certain as to the state of mind 
of his client, and in those situations he should re- 
solve reasonable doubts in favor of his client. 

EC 7-7 In certain areas of legal representation 
not affecting the merits of the cause or substan- 
tially prejudicing the rights of a client, a lawyer is 
entitled to make decisions on his own. But other- 
wise the authority to make decisions is exclusively 
that of the client and, if made within the frame- 
work of the law, such decisions are binding on his 
lawyer. As typical examples in civil cases, it is 
for the client to decide whether he will accept a 
settlement offer or whether he will waive his right 
to plead an affirmative defense. A defense law- 
yer in a criminal case has the duty to advise his 
client fully on whether a particular plea to a 
charge appears to be desirable and as to the pros- 

2d 493, 498, 87 S.Ct. 1396, 1399-1400 (1967), rehearing de- 
nied, 388 U.S. 924, 18 L.Ed. 2d 1377, 87 S.Ct. 2094 (1967). 

See Paul, The Lawyer As a Tax Adviser, 25 Rocky Mt. 
L. Rev. 412, 432 (1953). 

13 See ABA Canon 32. 

14 "For a lawyer to represent a syndicate notoriously 
engaged in the violation of the law for the purpose of ad- 
vising the members how to break the law and at the same 
time escape it, is manifestly improper. While a lawyer 
may see to it that anyone accused of crime, no matter 
how serious and flagrant, has a fair trial, and present all 
available defenses, he may not co-operate in planning vio- 
lations of the law. There is a sharp distinction, of course, 
between advising what can lawfully be done and advising 
how unlawful acts can be done in a way to avoid con- 
viction. Where a lawyer accepts a retainer from an 
organization, known to be unlawful, and agrees in ad- 
vance to defend its members when from time to time they 
are accused of crime arising out of its unlawful activities, 
this Is equally improper." 

"See also Opinion 155." ABA Opinion 281 (1952). 


LI 



CODE OF PROFESSIONAL RESPONSIBILITY 


pects of success on appeal, but it is for the client 
to decide what plea should be entered and whether 
an appeal should be taken. 15 

EC 7-8 A lawyer should exert his best efforts to 
insure that decisions of his client are made only 
after the client has been informed of relevant con- 
siderations . A lawyer ought to initiate this de- 
cision-making process if the client does not do so. 
Advice of a lawyer to his client need not be con- 
fined to purely legal considerations. 16 A lawyer 
should advise his client of the possible effect of 
each legal alternative. 17 A lawyer should bring 
to bear upon this decision-making process the full- 
ness of his experience as well as his objective 
viewpoint' s In assisting his client to reach a 
proper decision, it is often desirable for a lawyer 
to point out those factors which may lead to a 
decision that is morally just as well as legally per- 
missible. 19 He may emphasize the possibility of 
harsh consequences that might result from as- 
sertion of legally permissible positions. In the 
final analysis, however, the lawyer should always 
remember that the decision whether to forego le- 
gally available objectives or methods because of 
non-legal factors is ultimately for the client and 

15 See ABA Special Committee on Minimum Standards 
for the Administration of Criminal Justice, Standards Re- 
lating to Pleas of Guilty pp. 69-70 (1968). 

16 "First of all, a truly great lawyer is a wise counselor 
to all manner of men in the varied crises of their lives 
when they most need disinterested advice. Effective 
counseling necessarily involves a thoroughgoing knowledge 
of the principles of the law not merely as they appear in 
the books but as they actually operate in action." Van- 
derbilt, The Five Functions of the Loujyer: Service to 
Clients and the Public, 40 A.B.A.J. 31 (1954). 

17 "A lawyer should endeavor to obtain full knowledge of 
his client's cause before advising thereon. ..." ABA 
Canon 8. 

18 "[I]n devising charters of collaborative effort the 
lawyer often acts where all of the affected parties are 
present as participants. But the lawyer also performs 
a similar function in situations where this is not so, as, 
for example, in planning estates and drafting wills. Here 
the instrument defining the terms of collaboration may 
affect persons not present and often not born. Yet here, 
too, the good lawyer does not serve merely as a legal con- 
duit for his client's desires, but as a wise counselor, ex- 
perienced in the art of devising arrangements that will 
put in workable order the entangled affairs and interests 
of human beings." Professional Responsibility: Report 
of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958). 

19 See ABA Canon 8. 

"Vital as is the lawyer's role in adjudication, it should 
not be thought that it is only as an advocate pleading in 
open court that he contributes to the administration of 
the law. The most effective realization of the law's aims 
often takes place in the attorney's office, where litigation 
is forestalled by anticipating its outcome, where the law- 
yer's quiet counsel takes the place of public force. Con- 
trary to popular belief, the compliance with the law thus 
brought about is not generally lip-serving and narrow, for 
aj reminding him of its long-run costs the lawyer often 
deters his client from a course of conduct technically per- 
missible under existing law, though Inconsistent with its 
underlying spirit and purpose." Professional Responsi- 
bility: Report of the Joint Conference, 44 A.B.A.J. 1159, 
1161(1958). 


not for himself, In the event that the client in a 
non-adjudicatory matter insists upon a course of 
conduct that is contrary to the judgment and ad- 
vice of the lawyer but not prohibited by Disciplin- 
ary Rules, the lawyer may withdraw from the 
employment. 20 

EC 7-9 In the exercise of his professional judg- 
ment on those decisions which are for his deter- 
mination in the handling of a legal matter, 21 a law- 
yer should always act in a manner consistent with 
the best interests of his client. 22 However, when 
an action in the best interest of his client seems 
to him to be unjust, he may ask his client for 
permission to forego such action. 23 

EC 7-10 The duty of a lawyer to represent his 
client with zeal does not militate against his con- 
current obligation to treat with consideration all 
persons involved in the legal process and to avoid 
the infliction of needless harm. 

EC 7-11 The responsibilities of a lawyer may 
vary according to the intelligence, experience, men- 
tal condition or age of a client, the obligation of 
a public officer, or the nature of a particular pro- 
ceeding. Examples include the representation of 
an illiterate or an incompetent, service as a pub- 
lic prosecutor or other government lawyer, and 
appearances before administrative and legislative 
bodies. 

EC 7-12 Any mental or physical condition of a 
client that renders him incapable of making a con- 
sidered judgment on his own behalf casts addi- 
tional responsibilities upon his lawyer. Where an 
incompetent is acting through a guardian or other 
legal representative, a lawyer must look to such 
representative for those decisions which are nor- 
mally the prerogative of the client to make. If a 
client under disability has no legal representative, 
his lawyer may be compelled in court proceedings 
to make decisions on behalf of the client. If the 
client is capable of understanding the matter in 
question or of contributing to the advancement of 
his interests, regardless of whether he is legally 
disqualified from performing certain acts, the law- 
yer should obtain from him all possible aid. If 
the disability of a client and the lack of a legal 
representative compel the lawyer to make deci- 
sions for his client, the lawyer should consider all 

20 "My summation of Judge Sharswood's view of the 
advocate's duty to the client is that he owes to the client 
the duty to use all legal means in support of the client's 
case. However, at the same time Judge Sharswood recog- 
nized that many advocates would find this obligation un- 
bearable if applicable without exception. Therefore, the 
individual lawyer is given the choice of representing his 
client fully within the bounds set by the law or of telling 
his client that he cannot do so, so that the client may ob- 
tain another attorney if he wishes." Thode, The Ethical 
Standard for the Advocate, 39 Texas L.Rev. 575, 582 (1961). 

Cf Code of Professional Responsibility, DR 2-110 (C). 

21 See ABA Canon 24. 

22 Thode, The Ethical Standard for the Advocate, 39 
Texas L.Rev. 575, 592 (1961). 

23 Cf ABA Opinions 253 (1946) and 178 (1938). 


LI1 



CODE OF PROFESSIONAL RESPONSIBILITY 


circumstances then prevailing and act with care 
to safeguard and advance the interests of his 
client. But obviously a lawyer cannot perform 
any act or make any decision which the law re- 
quires his client to perform or make, either act- 
ing for himself if competent, or by a duly consti- 
tuted representative if legally incompetent. 

EC 7-13 The responsibility of a public prosecutor 
differs from that of the usual advocate; his duty 
is to seek justice, not merely to convict. 24 This 
special duty exists because: (1) the prosecutor 
represents the sovereign and therefore should use 
restraint in the discretionary exercise of govern- 
mental powers, such as in the selection of cases 
to prosecute; (2) during trial the prosecutor is not 
only an advocate but he also may make decisions 
normally made by an individual client, and those 
affecting the public interest should be fair to all; 
and (3) in our system of criminal justice the ac- 
cused is to be given the benefit of all reasonable 
doubts. With respect to evidence and witnesses, 
the prosecutor has responsibilities different from 
those of a lawyer in private practice: the prose- 
cutor should make timely disclosure to the de- 
fense of available evidence, known to him, that 
tends to negate the guilt of the accused, mitigate 
the degree of the offense, or reduce the punish- 
ment. Further, a prosecutor should not intention- 
ally avoid pursuit of evidence merely because he 
believes it will damage the prosecution's case or 
aid the accused. 

EC 7-14 A government lawyer who has discre- 
tionary power relative to litigation should refrain 
from instituting or continuing litigation that is 
obviously unfair. A government lawyer not hav- 
ing such discretionary power who believes there 
is lack of merit in a controversy submitted to him 
should so advise his superiors and recommend the 
avoidance of unfair litigation. A government law- 
yer in a civil action or administrative proceeding 
has the responsibility to seek justice and to de- 
velop a full and fair record, and he should not 
use his position or the economic power of the 
government to harass parties or to bring about 
unjust settlements or results. 

2 4 See ABA Canon 5 and Berger v. United States, 295 
U.S. 78, 79 L. Ed. 1314, 55 S.Ct. 629 (1935). 

"The public prosecutor cannot take as a guide for the 
conduct of his office the standards of an attorney appear- 
ing on behalf of an individual client. The freedom else- 
where wisely granted to a partisan advocate must be 
severely curtailed if the prosecutor's duties are to be prop- 
erly discharged. The public prosecutor must recall that 
he occupies a dual role, being obligated, on the one hand, 
to furnish that adversary element essential to the in- 
formed decision of any controversy, but being possessed, 
on the other, of important governmental powers that are 
pledged to the accomplishment of one objective only, that 
of impartial justice. Where the prosecutor is recreant to 
the trust implicit in his office, he undermines confidence, 
not only in his profession, but in government and the very 
ideal of justice itself." Professional Responsibility : Re- 
port of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958). 

"The prosecuting attorney Is the attorney for the state, 
and it is his primary duty not to convict but to see that 
justice is done." ABA Opinion 150 (1936). 

LIll 


EC 7-15 The nature and purpose of proceedings 
before administrative agencies vary widely. The 
proceedings may be legislative or quasi-judicial, 
or a combination of both. They may be ex parte 
in character, in which event they may originate 
either at the instance of the agency or upon mo- 
tion of an interested party. The scope of an in- 
quiry may be purely investigative or it may be 
truly adversary looking toward the adjudication of 
specific rights of a party or of classes of parties. 
The foregoing are but examples of some of the 
types of proceedings conducted by administrative 
agencies. A lawyer appearing before an admin- 
istrative agency, 25 regardless of the nature of the 
proceeding it is conducting, has the continuing 
duty to advance the cause of his client within the 
bounds of the law. 26 Where the applicable rules 
of the agency impose specific obligations upon a 
lawyer, it is his duty to comply therewith, unless 
the lawyer has a legitimate basis for challenging 
the validity thereof. In all appearances before 
administrative agencies, a lawyer should identify 
himself, his client if identity of his client is not 
privileged, 27 and the representative nature of his 
appearance. It is not improper, however, for a 
lawyer to seek from an agency information avail- 
able to the public without identifying his client. 

EC 7-16 The primary business of a legislative 
body is to enact laws rather than to adjudicate 
controversies, although on occasion the activities 
of a legislative body may take on the characteris- 
tics of an adversary proceeding, particularly in in- 
vestigative and impeachment matters. The role 
of a lawyer supporting or opposing proposed legis- 
lation normally is quite different from his role 
in representing a person under investigation or on 
trial by a legislative body. When a lawyer ap- 
pears in connection with proposed legislation, he 
seeks to affect the lawmaking process, but when 
he appears on behalf of a client in investigatory 
or impeachment proceedings, he is concerned with 
the protection of the rights of his client. In ei- 
ther event, he should identify himself and his 
client, if identity of his client is not privileged, 
and should comply with applicable laws and leg- 
islative rules. 28 

EC 7-17 The obligation of loyalty to his client 
applies only to a lawyer in the discharge of his 
professional duties and implies no obligation to 
adopt a personal viewpoint favorable to the in- 

25 As to appearances before a department of government, 
Canon 26 provides : "A lawyer openly . . . may render 
professional services ... in advocacy of claims be- 
fore departments of government, upon the same principles 
of ethics which justify his appearance before the Courts 

26 "But as an advocate before a service which itself 
represents the adversary point of view, where his client's 
case is fairly arguable, a lawyer is under no duty to dis- 
close its weaknesses, any more than he would be to make 
such a disclosure to a brother lawyer. The limitations 
within which he must operate are best expressed in Canon 
22 . . . ABA Opinion 314(1965). 

27 See Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960). 

28 See ABA Canon 26. 



CODE OF PROFESSIONAL RESPONSIBILITY 


terests or desires of his client. 29 While a lawyer 
must act always with circumspection in order that 
his conduct will not adversely affect the rights of 
a client in a matter he is then handling, he may 
take positions on public issues and espouse legal 
reforms he favors without regard to the individual 
views of any client. 

EC 7-18 The legal system in its broadest sense 
functions best when persons in need of legal ad- 
vice or assistance are represented by their own 
counsel. For this reason a lawyer should not com- 
municate on the subject matter of the representa- 
tion of his client with a person he knows to be 
represented in the matter by a lawyer, unless pur- 
suant to law or rule of court or unless he has the 
consent of the lawyer for that person. 30 If one 
is not represented by counsel, a lawyer represent- 
ing another may have to deal directly with the 
unrepresented person; in such an instance, a law- 
yer should not undertake to give advice to the 
person who is attempting to represent himself, 3 1 
except that he may advise him to obtain a lawyer. 

Duty of the Lawyer to the Adversary System of 
Justice 

EC 7-19 Our legal system provides for the ad- 
judication of disputes governed by the rules of 
substantive, evidentiary, and procedural law. An 
adversary presentation counters the natural hu- 
man tendency to judge too swiftly in terms of the 
familiar that which is not yet fully known; 32 the 
advocate, by his zealous preparation and presenta- 
tion of facts and law, enables the tribunal to come 
to the hearing with an open and neutral mind and 
to render impartial judgments. 33 The duty of a 

29 "Law should be so practiced that the lawyer re- 
mains free to make up his own mind how he will vote, 
what causes he will support, what economic and political 
philosophy he will espouse. It is one of the glories of the 
profession that it admits of this freedom. Distinguished 
examples can be cited of lawyers whose views were at 
variance from those of their clients, lawyers whose skill 
and wisdom make them valued advisers to those who had 
little sympathy with their views as citizens." Professional 
Responsibility : Report of the Joint Conference, 44 A.B. 
A.J. 1159, 1217 (1958). 

"No doubt some tax lawyers feel constrained to abstain 
from activities on behalf of a better tax system because 
they think that their clients may object. Clients have no 
right to object if the tax adviser handles their affairs 
competently and faithfully and independently of his pri- 
vate views as to tax policy. They buy his expert services, 
not his private opinions or his silence on issues that grave- 
ly affect the public interest." Paul, The Lawyer as a Tax 
Adviser, 25 Rocky Mt.L.Rev. 412, 434 (1953). 

30 See ABA Canon 9. 

31 Id. 

32 See Professional Responsibility: Report of the Joint 
Conference, 44 A.B.A.J. 1159, 1160 (1958). 

33 "Without the participation of someone who can act 
responsibly for each of the parties, this essential narrow- 
ing of the issues [by exchange of written pleadings or stip- 
ulations of counsel] becomes impossible. But here again 
the true significance of partisan advocacy lies deeper, touch- 
ing once more the integrity of the adjudicative process it- 
self. It is only through the advocate's participation that 
the hearing may remain in fact what it purports to be in 


lawyer to his client and his duty to the legal sys- 
tem are the same: to represent his client zealous- 
ly within the bounds of the law. 34 

EC 7-20 In order to function properly, our ad- 
judicative process requires an informed, impartial 
tribunal capable of administering justice prompt- 
ly and efficiently 3S according to procedures that 
command public confidence and respect. 38 Not on- 
ly must there be competent, adverse presentation 
of evidence and issues, but a tribunal must be 
aided by rules appropriate to an effective and dig- 
nified process. The procedures under which tribu- 
nals operate in our adversary system have been 
prescribed largely by legislative enactments, court 
rules and decisions, and administrative rules. 
Through the years certain concepts of proper pro- 
fessional conduct have become rules of law ap- 
plicable to the adversary adjudicative process. 
Many of these concepts are the bases for stand- 
ards of professional conduct set forth in the Dis- 
ciplinary Rules. 

EC 7-21 The civil adjudicative process is pri- 
marily designed for the settlement of disputes be- 
tween parties, while the criminal process is de- 
signed for the protection of society as a whole. 
Threatening to use, or using, the criminal process 
to coerce adjustment of private civil claims or con- 
troversies is a subversion of that process; 37 fur- 
ther, the person against whom the criminal proc- 
ess is so misused may be deterred from asserting 
his legal rights and thus the usefulness of the civil 
process in settling private disputes is impaired. 
As in all cases of abuse of judicial process, the im- 
proper use of criminal process tends to diminish 
public confidence in our legal system. 

EC 7-22 Respect for judicial rulings is essential 
to the proper administration of justice; however, 
a litigant or his lawyer may, in good faith and 

theory : a public trial of the facts and issues. Each ad- 
vocate comes to the hearing prepared to present his proofs 
and arguments, knowing at the same time that his argu- 
ments may fail to persuade and that his proof may be re- 
jected as inadequate. . . . The deciding tribunal, on 
the other hand, comes to the hearing uncommitted. It 
has not represented to the public that any fact can be 
proved, that any argument is sound, or that any par- 
ticular way of stating a litigant's case is the most effec- 
tive expression of its merits." Professional Responsibility: 
Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61 
(1958). 

34 Cf. ABA Canons 15 and 32. 

35 Cf ABA Canon 21. 

36 See Professional Responsibility: Report of the Joint 
Conference, 44 A.B.A.J. 1159, 1216 (1958). 

37 "We are of the opinion that the letter in question 
was improper, and that in writing and sending it respond- 
ent was guilty of unprofessional conduct. This court has 
heretofore expressed its disapproval of using threats of 
criminal prosecution as a means of forcing settlement of 
civil claims. . 

"Respondent has been guilty of a violation of a principle 
which condemns any confusion of threats of criminal 
prosecution with the enforcement of civil claims. For this 
misconduct he should be severely censured." Matter of 
Gelman, 230 App.Div. 524, 527, 245 N.Y.S. 416, 419 (1930). 



CODE OF PROFESSIONAL RESPONSIBILITY 


within the framework of the law, take steps to 
test the correctness of a ruling of a tribunal. 38 

EC 7-23 The complexity of law often makes it 
difficult for a tribunal to be fully informed unless 
the pertinent law is presented by the lawyers in 
the cause. A tribunal that is fully informed on 
the applicable law is better able to make a fair 
and accurate determination of the matter before 
it. The adversary system contemplates that each 
lawyer will present and argue the existing law 
in the light most favorable to his client. 39 Where 
a lawyer knows of legal authority in the control- 
ling jurisdiction directly adverse to the position of 
his client, he should inform the tribunal of its ex- 
istence unless his adversary has done so; but, hav- 
ing made such disclosure, he may challenge its 
soundness in whole or in part. 4° 

EC 7-24 In order to bring about just and in- 
formed decisions, evidentiary and procedural rules 
have been established by tribunals to permit the 
inclusion of relevant evidence and argument and 
the exclusion of all other considerations. The ex- 
pression by a lawyer of his personal opinion as 
to the justness of a cause, as to the credibility of 
a witness, as to the culpability of a civil litigant, 
or as to the guilt or innocence of an accused is not 
a proper subject for argument to the trier of 
fact. 41 It is improper as to factual matters be- 
cause admissible evidence possessed by a lawyer 
should be presented only as sworn testimony. It 
is improper as to all other matters because, were 
the rules otherwise, the silence of a lawyer on 
a given occasion could be construed unfavorably 
to his client. However, a lawyer may argue, on 
his analysis of the evidence, for any position or 

38 "An attorney has the duty to protect the interests of 
his client. He has a right to press legitimate argument 
and to protest an erroneous ruling." Gallagher v. Munici- 
pal Court, 31 Cal. 2d 784, 796, 192 P.2d 905, 913 (1948). 

"There must be protection, however, in the far more 
frequent case of the attorney who stands on his rights and 
combats the order in good faith and without disrespect 
believing with good cause that it is void, for it is here 
that the independence of the bar becomes valuable." Note, 
39 Colum.L.Rev. 433, 438 (1939). 

39 "Too many do not understand that accomplishment 
of the layman's abstract ideas of justice is the function of 
the judge and jury, and that it is the lawyer's sworn duty 
to portray his client's case in its most favorable light." 
Rochelle and Payne, The Struggle for Public Understand- 
ing, 25 Texas B.J. 109, 159 (1962). 

40 "We are of the opinion that this Canon requires the 
lawyer to disclose such decisions [that are adverse to his 
client's contentions] to the court. He may, of course, aft- 
er doing so, challenge the soundness of the decisions or 
present reasons which he believes would warrant the court 
in not following them in the pending case." ABA Opinion 
146(1935). 

Cf. A.BA. Opinion 280 (1949) and Thode, The Ethical 
Standard for the Advocate, 39 Texas L. Rev. 575, 585-86 
(1961). 

4 1 See ABA Canon 15. 

"The traditional duty of an advocate is that he honor- 
ably uphold the contentions of his client. He should not 
voluntarily undermine them." Harders v. State of Cali- 
fornia, 373 F.2d 839, 842 (9th Cir. 1967). 


conclusion with respect to any of the foregoing 
matters. 

EC 7-25 Rules of evidence and procedure are de- 
signed to lead to just decisions and are part of 
the framework of the law. Thus while a lawyer 
may take steps in good faith and within the frame- 
work of the law to test the validity of rules, he is 
not justified in consciously violating such rules 
and he should be diligent in his efforts to guard 
against his unintentional violation of them. ~ As 
examples, a lawyer should subscribe to or verify 
only those pleadings that he believes are in com- 
pliance with applicable law and rules; a lawyer 
should not make any prefatory statement before 
a tribunal in regard to the purported facts of the 
case on trial unless he believes that his statement 
will be supported by admissible evidence; a law- 
yer should not ask a witness a question solely for 
the purpose of harassing or embarrassing him*, 
and a lawyer should not by subterfuge put be- 
fore a jury matters which it cannot properly con- 
sider. 

EC 7-26 The law and Disciplinary Rules prohibit 
the use of fraudulent, false, or perjured testimony 
or evidence. 43 A lawyer who knowingly 44 par- 
ticipates in introduction of such testimony or evi- 
dence is subject to discipline. A lawyer should, 
however, present any admissible evidence his client 
desires to have presented unless he knows, or from 
facts within his knowledge should know, that such 
testimony or evidence is false, fraudulent, or per- 
j ured.45 

EC 7-27 Because it interferes with the proper ad- 
ministration of justice, a lawyer should not sup- 
press evidence that he or his client has a legal ob- 
ligation to reveal or produce. In like manner, a 
lawyer should not advise or cause a person to 
secrete himself or to leave the jurisdiction of a 
tribunal for the purpose of making him unavail- 
able as a witness therein. 46 

EC 7-28 Witnesses should always testify truth- 
fully 47 and should be free from any financial in- 
ducements that might tempt them to do other- 

42 See ABA Canon 22. 

43 Id. Cf. ABA Canon 4 1 . 

44 See generally ABA Opinion 287 (1953) as to a lawyer's 
duty when he unknowingly participates in introducing 
perjured testimony. 

45 "Under any standard of proper ethical conduct an 
attorney should not sit by silently and permit his client 
to commit what may have been perjury, and which cer- 
tainly would mislead the court and the opposing party on 
a matter vital to the issue under consideration. . 

"Respondent next urges that it was his duty to observe 
the utmost good faith toward his client, and therefore he 
could not divulge any confidential information. This duty 
to the client of course does not extend to the point of 
authorizing collaboration with him in the commission of 
fraud.” In re Carroll, 244 S.W.2d 474, 474-75 (Ky. 1951). 

46 See ABA Canon 5; cf. ABA Opinion 131 (1935). 

47 Cf. ABA Canon 39. 


LV 



CODE OF PROFESSIONAL RESPONSIBILITY 


wise. 48 A lawyer should not pay or agree to pay 
a non-expert witness an amount in excess of re- 
imbursement for expenses and financial loss in- 
cident to his being a witness; however, a lawyer 
may pay or agree to pay an expert witness a rea- 
sonable fee for his services as an expert. But in 
no event should a lawyer pay or agree to pay a 
contingent fee to any witness. A lawyer should 
exercise reasonable diligence to see that his client 
and lay associates conform to these standards. 49 

EC 7-29 To safeguard the impartiality that is 
essential to the judicial process, veniremen and 
jurors should be protected against extraneous in- 
fluences. 50 When impartiality is present, public 
confidence in the judicial system is enhanced. 
There should be no extrajudicial communication 
with veniremen prior to trial or with jurors during 
trial by or on behalf of a lawyer connected with 
the case. Furthermore, a lawyer who is not con- 
nected with the case should not communicate with 
or cause another to communicate with a venire- 
man or a juror about the case. After the trial, 
communication by a lawyer with jurors is per- 
mitted so long as he refrains from asking ques- 
tions or making comments that tend to harass 
or embarrass the juror 5 i or to influence actions 
of the juror in future cases. Were a lawyer to be 
prohibited from communicating after trial with a 
juror, he could not ascertain if the verdict might 
be subject to legal challenge, in which event the 
invalidity of a verdict might go undetected. 52 When 

48 "The prevalence of perjury is a serious menace to the 
administration of justice, to prevent which no means have 
as yet been satisfactorily devised. But there certainly can 
be no greater incentive to perjury than to allow a party 
to make payments to its opponents witnesses under any 
guise or on any excuse, and at least attorneys who are of- 
ficers of the court to aid it in the administration of jus- 
tice, must keep themselves clear of any connection which 
in the slightest degree tends to induce witnesses to testi- 
fy in favor of their clients." In re Robinson, 151 App.Div. 
589, 600, 136 N.Y.S. 548, 556-57 (1912), ctffcL, 209 N.Y. 354, 
103 N.E. 160 (1913). 

49 "it will not do for an attorney who seeks to justify 
himself against charges of this kind to show that he has 
escaped criminal responsibility under the Penal Law, nor 
can he blindly shut his eyes to a system which tends to 
suborn witnesses, to produce perjured testimony, and to 
suppress the truth. He has an active affirmative duty to 
protect the administration of justice from perjury and 
fraud, and that duty is not performed by allowing his 
subordinates and assistants to attempt to subvert justice 
and procure results for his clients based upon false testi- 
mony and perjured witnesses." Id., 151 App.Div. at 592, 
136 N.Y.S. at 551. 

50 See ABA Canon 23. 

51 "[i] t is unfair to jurors to permit a disappointed liti- 
gant to pick over their private associations in search of 
something to discredit them and their verdict. And it 
would be unfair to the public too if jurors should under- 
stand that they cannot convict a man of means without 
risking an inquiry of that kind by paid investigators, with, 
to boot, the distortions an inquiry of that kind can pro- 
duce." State v. LaFera, 42 N.J. 97, 107, 199 A.2d 630, 636 
(1964). 

52 ABA Opinion 319 (1968) points out that "[m]any courts 
today, and the trend is in this direction, allow the testi- 


an extrajudicial communication by a lawyer with 
a juror is permitted by law, it should be made 
considerately and with deference to the personal 
feelings of the juror. 

EC 7-30 Vexatious or harassing investigations of 
veniremen or jurors seriously impair the effective- 
ness of our jury system. For this reason, a law- 
yer or anyone on his behalf who conducts an in- 
vestigation of veniremen or jurors should act with 
circumspection and restraint. 

EC 7-31 Communications with or investigations 
of members of families of veniremen or jurors by 
a lawyer or by anyone on his behalf are subject 
to the restrictions imposed upon the lawyer with 
respect to his communications with or investiga- 
tions of veniremen and jurors. 

EC 7-32 Because of his duty to aid in preserving 
the integrity of the jury system, a lawyer who 
learns of improper conduct by or towards a venire- 
man, a juror, or a member of the family of either 
should make a prompt report to the court regard- 
ing such conduct. 

EC 7-33 A goal of our legal system is that each 
party shall have his case, criminal or civil, ad- 
judicated by an impartial tribunal. The attain- 
ment of this goal may be defeated by dissemina- 
tion of news or comments which tend to influence 
judge or jury. 53 Such news or comments may 

mony of jurors as to all irregularities in and out of the 
courtroom except those irregularities whose existence can 
be determined only by exploring the consciousness of a 
single particular juror, New Jersey v. Kociolek, 20 N.J. 92, 
118 A. 2d 812 (1955). Model Code of Evidence Rule 301. 
Certainly as to states in which the testimony and affidavits 
of jurors may be received in support of or against a mo- 
tion for new trial, a lawyer, in his obligation to protect 
his client, must have the tools for ascertaining whether 
or not grounds for a new trial exist and it is not unethical 
for him to talk to and question jurors." 

53 Generally see ABA Advisory Committee on Fair Trial 
and Free Press, Standards Relating to Fair Trial and 
Free Press (1966). 

"[T]he trial court might well have proscribed extra- 
judicial statements by any lawyer, party, witness, or court 
official which divulged prejudicial matters . . 

State v. Van Dwyne, 43 N.J. 369, 389, 204 A.2d 841, 852 
(1964), in which the court interpreted Canon 20 of the 
American Bar Association's Canons of Professional Ethics 
to prohibit such statements. Being advised of the great 
public interest in the case, the mass coverage of the press, 
and the potential prejudicial impact of publicity, the 
court could also have requested the appropriate city and 
county officials to promulgate a regulation with respect 
to dissemination of information about the case by their 
employees. In addition, reporters who wrote or broad- 
cast prejudicial stories, could have been warned as to the 
impropriety of publishing material not introduced in the 
proceedings. • - - In this manner, Sheppard's right 
to a trial free from outside interference would have been 
given added protection without corresponding curtailment 
of the news media. Had the judge, the other officers of 
the court, and the police placed the interest of justice first, 
the news media would have soon learned to be content 
with the task of reporting the case as it unfolded in the 
courtroom — not pieced together from extrajudicial state- 
ments." Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L. 
E.2d 600, 619-20, 86 S.Ct. 1507, 1521-22 (1966). 



CODE OF PROFESSIONAL RESPONSIBILITY 


lawyer and render appropriate ac- 
counts to his client regarding them. 

(4) Promptly pay or deliver to the client 
as requested by a client the funds, se- 
curities, or other properties in the pos- 
session of the lawyer which the client 
is entitled to receive. 


DEFINITIONS* 

As used in the Disciplinary Rules of the Code of 
Professional Responsibility: 

(1) "Differing interests" include every interest 
that will adversely affect either the judg- 
ment or the loyalty of a lawyer to a client, 
whether it be a conflicting, inconsistent, di- 
verse, or other interest. 

* "Confidence” and "secret" are defined in DR 4- 10 1(A). 


(2) "Law firm" includes a professional legal 
corporation. 

"Person" includes a corporation, an associa- 
tion, a trust, a partnership, and any other 
organization or legal entity. 

"Professional legal corporation" means a 
corporation, or an association treated as a 
corporation, authorized by law to practice 
law for profit. 

"State" includes the District of Columbia, 
Puerto Rico, and other federal territories 
and possessions. 

"Tribunal" includes all courts and all other 
adjudicatory bodies. 

"A bar association representative of the gen- 
eral bar" includes a bar association of spe- 
cialists as referred to in DR 2-105(A) (1) or 
(4). 


LXVII 



CANONS OF JUDICIAL ETHICS * 

With Amendments to January 1, 1968 


Ancient Precedents. 

"And I charged your judges at that time, say- 
ing Hear the causes between your brethren, and 
judge righteously between every man and his 
brother, and the stranger that is with him. 

"Ye shall not respect persons in judgment; but 
ye shall hear the small as well as the great; ye 
shall not be afraid of the face of man; for the 
judgment is God's; and the cause that is too hard 
for you, bring it unto me, and I wil hear it" — 
Deuteronomy, I, 16-17. 

"Thou shalt not wrest judgment; thou shat 
not respect persons, neither take a gift; for a 
gift doth blind the eyes of the wise, and pervert 
the words of the righteous." — Deuteronomy, XVI, 
19. 

"We will not make any justiciaries, constables, 
sheriffs or bailiffs, but from those who understand 
the law of the realm and are well disposed to ob- 
serve it. " — Magna Charta, XLV. 

"Judges ought to remember that their office is 
jus dicere not jus dare; to interpret law, and not 
to make law, or give law. " . 

"Judges ought to be more learned than witty; 
more reve-end than plausible; and more advised 
than confident. Above all things, integrity is their 
portion and proper virtue." . . 

"Patience and gravity of hearing is an essential 
part of justice; and an over speaking judge is no 
well-tuned cymbal. It is no grace to a judge first 
to find that which he might have heard in due 
time from the Bar, or to show quickness of con- 
ceit in cutting off evidence or counsel too short; 
or to prevent information by questions though 
pertinent." 

"The place of justice is a hallowed place; and 
therefore not only the Bench, but the foot pare 
and precincts and purprise thereof ought to be 
preserved without scandal and corruption." . 

— Bacon's Essay "Of Judicature. " 

Preamble. 

In addition to the Canons for Professional Con- 
duct of Lawyers which it has formulated and 
adopted, the American Bar Association, mindful 

* These Canons, to and including Canon 34, were adopted by 
the American Bar Association at its Forty-S-venth Annual 
Meeting, at Philadelphia, Pennsylvania, on July 9. 1924. The 
Committee of the Association which prepared the Canons was 
appointed in 1922, and composed of the following : William H. 
Taft, District of Columbia, Chairman ; Leslie C. Cornish, 
Maine; Robert von Moschzisker, Pennsylvania ; Charles A. 
Boston. New York ; and Garret W. McEnerney, California. 
George Sutherland, of Utah, originally a member of the Cum- 
mittee, retired and was succeeded by Mr. McEnerney. In 1923, 
Frank M. Angellotti, of California, took the place .of Mr. 
McEnerney. 

Canons 28 and 30 were amended at the Fifty- Sixth Annual 
Meeting, Grand Rapids, Michigan, August 30-September 1, 1933 
Canon 28 was further amended at the Seventy-Third Annual' 
Meeting, Washington, D. C., September 20. 1950. Canons 35 
and 36 were adopted at the Sixtieth Annual Meeting, at Kansas 
City, Missouri, September 30. 1937. Canon 35 was amended at 
San Francisco. Calif., Sept. 1952. 


that the character and conduct of a judge should 
never be objects of indifference, and that declared 
ethical standards tend to become habits of life, 
deems it desirable to set forth its views respecting 
those principles which should govern the personal 
practice of members of the judiciary in the admin- 
istration of their office. The Association accord- 
ingly adopts the following Canons, the spirit of 
which it suggests as a proper guide and reminder 
for judges, and as indicating what the people 
have a right to expect from them. 

1 . Relations of the Judiciary. 

The assumption of the office of judge casts 
upon the incumbent duties in respect to his person- 
al conduct which concern his relation to the state 
and its inhabit'nts, the litigants before him, the 
principles of law, the practitioners of law in his 
court, and the witnesses, jurors and attendants 
who aid him in the administration of its func- 
tions. 

2. The Public Interest. 

Courts exist to promote justice, and thus to 
serve the public interest. Their administration 
should be speedy and careful. Every judge should 
at all times be alert in his rulings and in the con- 
duct of the business of the court, so far as he can, 
to make it useful to litigants and to the commu- 
nity. He should avoid unconsciously falling into 
the attitude of mind that the litigants are made 
for the courts instead of the courts for the liti- 
gants. 

3. Constitutional Obligations. 

It is the duty of all judges in the United States 
to support the federal Constitution and that of 
the state whose laws they administer; in so do- 
ing, they should fearlessly observe and apply 
fundamental limitations and guarantees. 

4. Avoidance of Impropriety. 

A judge's official conduct should be free from 
impropriety and the appearance of impropriety; 
he should avoid infractions of law; and his per- 
sonal behavior, not only upon the Bench and in the 
performance of judicial duties, but also in his 
everyday life, should be beyond reproach. 

5. Essential Conduct. 

A judge should be temperate, attentive, patient, 
impartial, and, since he is to administer the law 
and apply it to the facts, he should be studious of 
the principles of the law and diligent in endeavor- 
ing to ascertain the facts. 

6. Industry. 

A judge should exhibit an industry and applica- 
tion commensurate with the duties imposed upon 
him. 


Black's Law Dictionary 4th Ed. Rev. 


LX IX 



CANONS OF JUDICIAL ETHICS 


7. Promptness. 

A judge should be prompt in the performance 
of his judicial duties, recognizing that the time 
of litigants, jurors and attorneys is of value and 
that habitual lack of punctuality on his part justi- 
fies dissatisfaction with the administration of the 
business of the court. 

8. Court Organization. 

A judge should organize the court with a view 
to the prompt and convenient dispatch of its busi- 
ness and he should not tolerate abuses and neglect 
by clerks, and other assistants who are sometimes 
prone to presume too much upon his good natured 
acquiescence by reason of friendly association 
with him. 

It is desirable too, where the judicial system 
permits, that he should cooperate with other 
judges of the same court, and in other courts, as 
members of a single judicial system, to promote 
the more satisfactory administration of justice. 

9. Consideration for Jurors and Others. 

A judge should be considerate of jurors, wit- 
nesses and others in attendance upon the court. 

10. Courtesy and Civility. 

A judge should be courteous to counsel, espe- 
cially to those who are young and inexperienced, 
and also to all others appearing or concerned in 
the administration of justice in the court. 

He should also require, and so far as his power 
extends, enforce on the part of clerks, court offi- 
cers and counsel civility and courtesy to the court 
and to jurors, witnesses, litigants and others hav- 
ing business in the court. 

1 1. Unprofessional Conduct of Attorneys and 

Counsel. 

A judge should utilize his opportunities to criti- 
cise and correct unprofessional conduct of attor, 
neys and counsellors, brought to his attention; 
and, if adverse comment is not a sufficient correc- 
tive, should send the matter at once to the proper 
investigating and disciplinary authorities. 

12. Appointees of the Judiciary and Their Com- 

pensation. 

Trustees, receivers, masters, referees, guardi- 
ans and other persons appointed by a judge to 
aid in the administration of justice should have 
the strictest probity and impartiality and should be 
selected with a view solely to their character and 
fitness. The power of making such appointments 
should not be exercised by him for personal or par- 
tisan advantage. He should not permit his ap- 
pointments to be controlled by others than himself. 
He should also avoid nepotism and undue favori- 
tism in his appointments. 

While not hesitating to fix or approve just 
amounts, he should be most scrupulous in granting 
Or approving compensation for the services or 
charges of such appointees to avoid excessive al- 
lowances, whether or not excepted to or complained 
of. He cannot rid himself of this responsibility by 
the consent of counsel. 


13. Kinship or Influence. 

A judge should not act in a controversy where 
a near relative is a party; he should not suffer 
his conduct to justify the impression that any 
person can improperly influence him or unduly en- 
joy his favor, or that he is affected by the kin- 
ship, rank, position or influence of any party or 
other person. 

14. Independence. 

A judge should not be swayed by partisan de- 
mands, public clamor or considerations of personal 
popularity or notoriety, nor be apprehensive of 
unjust criticism. 

15. Interference in Conduct of Trial. ' 

A judge may properly intervene in a trial of 
a case to promote expedition, and prevent unneces- 
sary waste of time, or to clear up some obscurity, 
but he should bear in mind that his undue inter- 
ference, impatience, or participation in the ex- 
amination of witnesses, or a severe attitude on his 
part toward witnesses, especially those who are 
excited or terrified by the unusual circumstances 
of a trial, may tend to prevent the proper presen- 
tation of the cause, or the ascertainment of the 
truth in respect thereto. 

Conversation between the judge and counsel in 
court is often necessary, but the judge should be 
studious to avoid controversies which are apt to 
obscure the merits of the dispute between liti- 
gants and lead to its unjust disposition. In ad- 
dressing counsel, litigants, or witnesses, he should 
avoid a controversial manner or tone. 

He should avoid interruptions of counsel in their 
arguments except to clarify his mind as to their 
positions, and he should not be tempted to the un- 
necessary display of learning or a premature judg- 
ment. 

16. Ex parte Applications. 

A judge should discourage ex parte hearings 
of applications for injunctions and receiverships 
where the order may work detriment to absent 
parties; he should act upon such ex parte ap- 
plications only where the necessity for quick 
action is clearly shown; if this be demonstrated, 
then he should endeavor to counteract the effect 
of the absence of opposing counsel by a scrupu- 
lous cross-examination and investigation as to 
the facts and the principles of law on which the 
application is based, granting relief only when 
fully satisfied that the law permits it and the 
emergency demands it. He should remember 
that an injunction is a limitation upon the free- 
dom of action of defendants and should not be 
granted lightly or inadvisedly. One applying for 
such relief must sustain the burden of showing 
clearly its necessity and this burden is increased 
in the absence of the party whose freedom of ac- 
tion is sought to be restrained even though only 
temporarily. 

17. Ex parte Communications. 

A judge should not permit private interviews, 
arguments or communications designed to in- 
fluence his judicial action, where interests to 


LXX 



CANONS OF JUDICIAL ETHICS 


be affected thereby are not represented before 
him, except in cases where provision is made by 
law for ex parte application. 

While the conditions under which briefs of 
argument are to be received are largely matters 
of local rule or practice, he should not permit the 
contents of such brief presented to him to be con- 
cealed from opposing counsel. Ordinarily all com- 
munications of counsel to the judge intended or 
calculated to influence action should be made 
known to opposing counsel. 

18. Continuances. 

Delay in the administration of justice is a com- 
mon cause of complaint; counsel are frequently 
responsible for this delay. A judge, without be- 
ing arbitrary or forcing cases unreasonably or un- 
justly to trial when unprepared, to the detriment 
of parties, may well endeavor to hold counsel to 
a proper appreciation of their duties to the public 
interest, to their own clients, and to the adverse 
party and his counsel, so as to enforce due dili- 
gence in the dispatch of business before the court. 

19. Judicial Opinions. 

In disposing of controverted cases, a judge 
should indicate the reasons for his action in an 
opinion showing that he has not disregarded or 
overlooked serious arguments of counsel. He 
thus shows his full understanding of the case, 
avoids the suspicion of arbitrary conclusion, pro- 
motes confidence in his intellectual integrity and 
may contribute useful precedent to the growth of 
the law. 

It is desirable that Courts of Appeals in revers- 
ing cases and granting new trials should so indi- 
cate their views on questions of law argued before 
them and necessarily arising in the controversy 
that upon the new trial counsel may be aided to 
avoid the repetition of erroneous positions of law 
and shall not be left in doubt by the failure of the 
court to decide such questions. 

But the volume of reported decisions is such 
and is so rapidly increasing that in writing opin- 
ions which are to be published judges may well 
take this fact into consideration, and curtail them 
accordingly, without substantially departing from 
the principles stated above. 

It is of high importance that judges constituting 
a court of last resort should use effort and self- 
restraint to promote solidarity of conclusion and 
the consequent influence of judicial decision. A 
judge should not yield to pride of opinion or value 
more highly his individual reputation than that 
of the court to which he should be loyal. Ex- 
cept in case of conscientious difference of opinion 
on fundamental principle, dissenting opinions 
should be discouraged in courts of last resort. 

20. Influence of Decisions Upon the Development 
of the Law. 

A judge should be mindful that his duty is the 
application of general law to particular instances, 
that ours is a government of law and not of men, 
and that he violates his duty as a minister of jus- 
tice under such a system if he seeks to do what 

I,X 


he may personally consider substantial justice in 
a particular case and disregards the general law 
as he knows it to be binding on him. Such ac- 
tion may become a precedent unsettling accept- 
ed principles and may have detrimental conse- 
quences beyond the immediate controversy. He 
should administer his office with a due regard to 
the integrity of the system of the law itself, remem- 
bering that he is not a depositary of arbitrary pow- 
er, but a judge under the sanction of law. 

2 1 . Idiosyncrasies and Inconsistencies. 

Justice should not be moulded by the individual 
idiosyncrasies of those who administer it. A judge 
should adopt the usual and expected method of 
doing justice, and not seek to be extreme or pe- 
culiar m his judgments, or spectacular or sensa- 
tional in the conduct of the court. Though vested 
with discretion in the imposition of mild or severe 
sentences he should not compel persons brought 
before him to submit to some humiliating act or 
discipline of his own devising, without authority of 
law, because he thinks it will have a beneficial cor- 
rective influence. 

In imposing sentence he should endeavor to con- 
form to a reasonable standard of punishment and 
should not seek popularity or publicity either by 
exceptional severity or undue leniency. 

22. Review. 

In order that a litigant may secure the full bene- 
fit of the right of review accorded to him by law, 
a trial judge should scrupulously grant to the de- 
feated party opportunity to present the questions 
arising upon the trial exactly as they arose, were 
presented, and decided, by full and fair bill of ex- 
ceptions or otherwise; any failure in this regard 
on the part of the judge is peculiarly worthy of 
condemnation because the wrong done may be ir- 
remediable. 

23. Legislation. 

A judge has exceptional opportunity to observe 
the operation of statutes, especially those relating 
to practice, and to ascertain whether they tend to 
impede the just disposition of controversies; and 
he may well contribute to the public interest by ad- 
vising those having authority to remedy defects of 
procedure, of the result of his observation and ex- 
perience. 

24. Inconsistent Obligations. 

A judge should not accept inconsistent duties; 
nor incur obligations, pecuniary or otherwise, 
which will in any way interfere or appear to in- 
terfere with his devotion to the expeditious and 
proper administration of his official functions. 

25. Business Promotions and Solicitations for 

Charity. 

A judge should avoid giving ground for any rea- 
sonable suspicion that he is utilizing the power or 
prestige of his office to persuade or coerce others 
to patronize or contribute, either to the success of 
private business ventures, or to charitable enter- 
prises. He should, therefore, not enter into such 
private business, or pursue such a course of con- 
duct, as would justify such suspicion, nor use the 
power of his office or the influence of his name to 
promote the business interests of others; he should 
not solicit for charities, nor should he enter into 
any business relation which, in the normal course 
of events reasonably to be expected, might bring his 
personal interest into conflict with the impartial 
performance of his official duties. 

I 



CANONS OF JUDICIAL ETHICS 


26. Personal Investments and Relations. 

A judge should abstain from making personal 
investments in enterprises which are apt to be in- 
volved in litigation in the court; and, after his 
accession to the Bench, he should not retain such 
investments previously made, longer than a pe- 
riod sufficient to enable him to dispose of them 
without serious loss. It is desirable that he should, 
so far as reasonably possible, refrain from all rela- 
tions which would normally tend to arouse the sus- 
picion that such relations warp or bias his judg- 
ment, or prevent his impartial attitude of mind in 
the administration of his judicial duties. 

He should not utilize information coming to him 
in a judicial capacity for purposes of speculation; 
and it detracts from the public confidence in his 
integrity and the soundness of his judicial judg- 
ment for him at any time to become a speculative 
investor upon the hazard of a margin. 

27. Executorships and Trusteeships. 

While a judge is not disqualified from holding 
executorships or trusteeships, he should not ac- 
cept or continue to hold any fiduciary or other po- 
sition if the holding of it would interfere or seem 
to interfere with the proper performance of his 
judicial duties, or if the business interests of those 
represented require investments in enterprises 
that are apt to come before him judicially, or to 
be involved in questions of law to be determined 
by him. 

28. Partisan Politics.* 

While entitled to entertain his personal views 
of political questions, and while not required to 
surrender his rights or opinions as a citizen, it is 
inevitable that suspicion of being warped by polit- 
ical bias will attach to a judge who becomes the 
active promoter of the interests of one political 
party as against another. He should avoid making 
political speeches, making or soliciting payment of 
assessments or contributions to party funds, the 
public endorsement of candidates for political of- 
fice and participation in party conventions. 

He should neither accept nor retain a place on 
any party committee nor act as party leader, nor 
engage generally in partisan activities. 

Where, however, it is necessary forjudges to be 
nominated and elected as candidates of a political 
party, nothing herein contained shall prevent the 
judge from attending or speaking at political gath- 
erings, or from making contributions to the cam- 
paign funds of the party that has nominated him 
and seeks his election or re-election. 

29. Self-Interest. 

A judge should abstain from performing or tak- 
ing part in any judicial act in which his personal 
interests are involved. If he has personal litiga- 
tion in the court of which he is judge, he need not 
resign his judgeship on that account, but he 
should, of course, refrain from any judicial act 
in such a controversy. 

30. Candidacy for Office.** 

A candidate for judicial position should not make 
or suffer others to make for him, promises of con- 
duct in office which appeal to the cupidity or preju- 
dices of the appointing or electing power; he 
should not announce in advance his conclusions of 
law on disputed issues to secure class support, and 
he should do nothing while a candidate to create 


the impression that if chosen, he will administer 
his office with bias, partiality or improper discrim- 
ination. 

While holding a judicial position he should not 
become an active candidate either at a party pri- 
mary or at a general election for any office other 
than a judicial office. If a judge should decide to 
become a candidate for any office not judicial, he 
should resign in order that it cannot be said that 
he is using the power or prestige of his judicial po- 
sition to promote his own candidacy or the success 
of his party. 

If a judge becomes a candidate for any judicial 
office, he should refrain from all conduct which 
might tend to arouse reasonable suspicion that he 
is using the power or prestige of his judicial posi- 
tion to promote his candidacy or the success of his 
party. 

He should not permit others to do anything in 
behalf of his candidacy which would reasonably 
lead to such suspicion. 

31. Private Law Practice. 

In many states the practice of law by one hold- 
ing judicial position is forbidden. In superior 
courts of general jurisdiction, it should never be 
permitted. In inferior courts in some states, it is 
permitted because the county or municipality is 
not able to pay adequate living compensation for 
a competent judge. In such cases one who prac- 
tises law is in a position of great delicacy and must 
be scrupulously careful to avoid conduct in his 
practice whereby he utilizes or seems to utilize his 
judicial position to further his professional success. 

He should not practise in the court in which he 
is a judge, even when presided over by another 
judge, or appear therein for himself in any con- 
troversy. 

If forbidden to practise law, he should refrain 
from accepting any professional employment while 
in office. 

He may properly act as arbitrator or lecture up- 
on or instruct in law, or write upon the subject, 
and accept compensation therefor, if such course 
does not interfere with the due performance of his 
judicial duties, and is not forbidden by some posi- 
tive provision of law. 

32. Gifts and Favors. 

A judge should not accept any presents or favors 
from litigants, or from lawyers practising before 
him or from others whose interests are likely to 
be submitted to him for judgment. 

33. Social Relations. 

It is not necessary to the proper performance 
of judicial duty that a judge should live in retire- 
ment or seclusion; it is desirable that, so far as 
reasonable attention to the completion of his work 
will permit, he continue to mingle in social inter- 
course and that he should not discontinue his in- 
terest in or appearance at meetings of members of 
the Bar. He should, however, in pending or pros- 
pective litigation before him be particularly care- 
ful to avoid such action as may reasonably tend 
to awaken the suspicion that his social or business 
relations or friendships constitute an element in in- 
fluencing his judicial conduct. 

34. A Summary of Judicial Obligation. 

In every particular his conduct should be above 
reproach. He should be conscientious, studious, 
thorough, courteous, patient, punctual, just, im- 
partial, fearless of public clamor, regardless of 


As amended August 31, 1933 and September 20, 1950. 

* As amended August 31, 1933. 

LXXII 



CANONS OF JUDICIAL ETHICS 


public praise, and indifferent to private political 
or partisan influences; he should administer jus- 
tice according to law, and deal with his appoint- 
ments as a public trust; he should not allow other 
affairs or his private interests to interfere with 
the prompt and proper performance of his judicial 
duties, nor should he administer the office for the 
purpose of advancing his personal ambitions or 
increasing his popularity. 

35. Improper Publicizing of Court Proceedings.* 
Proceedings in court should be conducted with 
fitting dignity and decorum. The taking of photo 
graphs in the court room, during sessions of the 
court or recesses between sessions, and the broad- 
casting or televising of court proceedings detract 
from the essential dignity of the proceedings, dis- 
tract participants and witnesses in giving testi- 
mony, and create misconceptions with respect 
thereto in the mind of the public and should not 
be permitted. 

* Adopted September 30, 1937 ; amended September 15, 1952 
and February 5, 1963. 


Provided that this restriction shall not apply to 
the broadcasting or televising, under the super- 
vision of the court, of such portions of naturaliza- 
tion proceedings (other than the interrogation of 
applicants) as are designed and carried out ex- 
clusively as a ceremony for the purpose of publicly 
demonstrating in an impressive manner the es- 
sential dignity and the serious nature of naturali- 
zation. 

36. Conduct of Court Proceedings.* 

Proceedings in court should be so conducted as 
to reflect the importance and seriousness of the 
inquiry to ascertain the truth. 

The oath should be administered to witnesses 
in a manner calculated to impress them with the 
importance and solemnity of their promise to ad- 
here to the truth. Each witness should be sworn 
separately and impressively at the bar or the court, 
and the clerk should be required to make a formal 
record of the administration of the oath, including 
the name of the witness. 

* Adopted September 30, 1937. 


I,XXII I 



MINIMUM REQUIREMENTS 
FOR ADMISSION TO LEGAL PRACTICE 
IN THE UNITED STATES * 


This table contains information of educational and residence requirements 
reported November 1, 1970. Full information and subse q uent changes, if 
any, may be obtained by writing to the Clerk of the highest appellate 
Court or the Secretary of the Bar Board in each state. The compilation 
following does not reflect changes which may become effective on or after 
January 1, 1971. 


Originally published in the Review of Legal Education, Fall 1970 and re p rinted with the permission of the 
American Bar Association and its Section of Legal Education and Admissions to the Bar. 


LXXV 



REQUIREMENTS FOR ADMISSION TO LEGAL PRACTICE IN U. S. 


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LXX vi 


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REQUIREMENTS FOR ADMISSION TO LEGAL PRACTICE IN U. S 








REQUIREMENTS FOR ADMISSION TO LEGAL PRACTICE IN U. s. 




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LXXVIII 





LXXIX 



REQUIREMENTS FOR ADMISSION TO LEGAL PRACTICE IN U. S. 





LXXX t 



BLACK'S 

DICTIONARY OF LAW 

FOURTH EDITION 


A. The first letter in the English and most other 
alphabets derived from the Roman or Latin al- 
phabet, which was one of several ancient Italian 
alphabets derived from the Greek, which was an 
adaptation of the Phoenician. The first letter in 
the Phoenician alphabet was called aleph, mean- 
ing "ox", which is also the meaning of the first 
letter in the Greek alphabet, alpha. 

Alpha and the second letter of the Greek alpha- 
bet, beta, were combined to form "alphabet," 
which is largely the same in different languages. 
In Danish, Dutch, Polish and Swedish alfabet; 
in English, German and French, alphabet; in 
Italian, Portuguese and Spanish, alfabeto; in 
Russian, alfabetli, etc. This striking similarity 
shows borrowing, either mediately or immediate- 
ly, from the same source. 

A has several different forms, the most curious 
of which is little a and big A. All of our letters 
were first capitals, and remained so for a long 
time. Then small letters alone were used for 
centuries. Later capitals were used with small 
letters, largely for ornamental purposes. The an- 
cient Egyptians had twenty a's to choose from, 
and it is said that a is the initial letter of about 
one-seventh of all Armenian words. 

Nundinal Letters 

A is also the first of the nundinal letters con- 
sisting of the first eight letters of the alphabet. 
These letters were repeated successively from the 
first to the last day of the year by the Romans 
and every ninth day was market day, when the 
country people came into the city to buy and sell 
and to attend to their private or religious affairs. 
However, no market day could coincide with the 
first day of January or the ninth day of the other 
months. The first market day of the year fell 
eight days from the preceding market day, which 
Black's Law Dictionary Revised 4th Ed.-I 


made the nundinal letter change every year, but 
if the nundinal letter for a given year was, for 
example, A, the market day always coincided with 
A, which was the ninth day from the preceding 
market day, both inclusive. No judgment could 
be pronounced, nor assemblies of the people held, 
on these days, but this was changed by the lex 
Hortensia in 246 B.C. Proposed laws were post- 
ed, and a vote could not be taken until three Ro- 
man weeks (trinum nundinum), or 24 days, had 
elapsed. A judgment debtor had 30 days to sat- 
isfy judgment against him. If he failed to do so, 
he was seized and taken before the magistrate 
and if he could find no surety he was put in 
chains and held by the judgment creditor for 60 
days, during which time the amount of his debt 
was proclaimed on three successive market days, 
and then if he failed, the XII Tables provided: 
"* * * Tertiis nundinus partis secanto; si plus 
minusive secuerint, sefraude esto." (On the 
third market day let him be cut into pieces; if 
any one [any creditor] cut more or less than his 
share, it shall not be a crime). Shylock, it will be 
remembered, had to cut just a pound of flesh 
and no more. 

Dominical or Sunday Letters 

A is also the first of the Dominical or Sunday 
letters, consisting of the first seven letters of the 
alphabet, which were introduced to replace the 
nundinal letters of the Romans. These letters, 
repeated successively from the first to the last day 
of the year, show the order of Sundays according 
to the Christian calendar. If the first day of 
January is on Sunday, all the rest of the days des- 
ignated by A will also be Sundays. Since each 
common year ends on the same day o/The week 
that it begins, the dominical letters change each 
year in retrogression. If the year is a leap year 
an adjustment is made either on the 25th or 29th 


1 



of February. The dominical letters are used to 
determine the date of Easter but may also be used 
to determine the day of the week on which a 
given date falls in any year. 

A as Symbol 

Both as a symbol and as an abbreviation, A is 
used in every phase of human activity and learn- 
ing. In law, commerce, manufacturing, engineer- 
ing, printing, music, medicine, geometry, mathe- 
matics, physics, chemistry, logic, philosophy, aero- 
nautics, artilleiy, etc., these devices, which are 
meaningless to the unitiated, simply could not be 
dispensed with. The Puritans first burned A on 
the forehead of the adulterer, — or at least on that 
of the adulteress! — and later fastened it on the 
sinner's clothing. The Roman judges used three 
wax-covered wooden tables. On one was in- 
scribed A for Absolvo (I acquit) ; on the second 
C for Condemn ° (I condemn), and on the third 
N. L. for Non liquet (It is not clear). When a 
proposed law was to be voted on, Roman voters 
received two tablets, on one of which was in- 
scribed A for antiquo (for the old law) , and on 
the other U. R. for Uti rogas (as you ask). A is 
also the first of the letters employed by the Se- 
mites and the ancient Greeks as numeral signs. 
If the Greek a was accented above, it stood for 1; 
if below, it stood for 1000. The Romans also used 
A as a numeral sign before they adopted the let- 
ter D. If A was not accented, it stood for 500, 
but if accented thus, A, it stood for 5000. 

The symbol is a graphic modification of the 
Latin ad, meaning "at" or "to". Some European 
railroads use A to designate first class railroad 
coaches. In European tourist guides A is used 
to designate places where there are hotels able 
to satisfy the wants of motorists. Mercantile 
agencies use A to indicate the highest commercial 
credit. A is also the highest mark given by teach- 
ers to pupils. Ship registries in United States, 
England, Germany and Norway use A to indicate 
the highest class of vessel. 

In the record of American Shipping A1 stands 
for a first-class vessel of the highest seaworthi- 
ness, the lower degrees being expressed by A1 1/2, 
etc., A3 being the lowest. In Lloyd's Register 
A1 means a first-class vessel. A printed in red 
means an over-aged vessel. ZE a third-class ves- 
sel. The broad A means an iron ship. The de- 
scription of a ship as "Al" amounts to a war- 
ranty. 01 live v. Booker, 1 Exch. 423. 

In ceramics A has various meanings. On fine 
old Sevres A alone shows that the piece was made 
in 1753, whereas AA shows that it was made in 
1777. A is also used as a brand by certain breed- 
ers of bulls for the bull ring, as well as by manu- 
facturers of fine Toledo swords. A denotes the 
first of a series, and is used to distinguish the 
first page of a folio from the second, which is 
marked b (Coke, Litt. 114a, 114b), as well as the 
first foot-note and the first section or subsection 
in statutes. It is also the name of the sixth note 
of the natural diatonic scale of C, or the first note 


of the relative minor scale. To this note all or- 
chestral instruments are tuned. A also indicates 
the key in which many great pieces of music are 
composed. The money coined at the Paris mint 
is marked with an A, and it was long supposed 
that such coinage was superior to that of the pro- 
vincial mints. This gave rise to the phrase Etre 
marque a VA (to be marked with an A) and was 
used to indicate a man of eminent rank or merit, 
just as we use A- 1 or A to indicate excellence of 
either persons or commodities. 

A is also used in numerous other phrases and 
proverbs. For example, A word to the wise is 
sufficient. This ordinarily admonitory proverb 
was held to be libellous in view of the context in 
which it was used. One who had sold out to his 
partner warned customers that the buyer was not 
responsible for his debts, since he was a minor, 
and that "a word to the wise is sufficient." The 
court said: "But when what was previously said 
is followed by the significant and proverbially pre. 
cautionary words — "A word to the wise is suffi- 
cient,' the idea is at once conveyed that plaintiff, 
is wanting in honor and integrity as a business 
man, and that those who should deal with him 
would suffer loss." Hays v. Mather, 15 Ill.App. 
30, 34. For the phrase, from alpha to omega, 
there is our from A to Z and A to izzard, and the 
German von A bis Z, which mean from beginning 
to end; completely; thoroughly; or in more 
modern slang, from soup to nuts. The German 
proverb Wer A sagt, mus auch B sagen is based 
on a profound knowledge of human nature, and 
translates, you can't say A without saying B; in 
for a penny, in for a pound. In other words, 
don't take the first step if you don't want to go 
the limit. Of a very ignorant or stupid person 
it has long been said that He does not know 
great A from a bull's foot or that he knows ni A 
rti B (neither A nor B). In Birds of a feather 
flock together, a means the same, or a feather 
means the same kind. 

A as Abbreviation 

As an abbreviation a, either alone or in combi- 
nation with other letters, is used in all the arts 
and sciences as well in hundreds of non-technical 
ways. Its meaning as an abbreviation largely de- 
pends on context. In common usage, it may mean 
about, accepted, acne, aged, answer, ante, area, 
amateur, etc. It is also used for almost any name 
of a person beginning with A, as Alfred, Anna, 
etc. In chemistry it stands for argon. A note 
provided for "Int. @ p. a." The court said: 
"The letter when used in a note, as it is here, 
is known and recognized among commercial peo- 
ple and businessmen as standing for 'at.'" Bel- 
ford v. Beatty, 34 N.E. 254, 255, 145 111. 414, 418. 

A is an abbreviation of adversus (against). 
Versus and its abbreviation v. are much oftener 
used in this sense, though the original Latin 
meaning of versus is toward; in the direction of. 

A, angstrom unit; the unit for measuring the 
length of light waves.. The ultra violet rays of 
sunlight between 3130A and 2900A activate pro- 


2 



A 


vitamins in the skin and certain foods, so as to 
produce the antirachitic substance known as vita- 
min D, which is also extracted from fish liver 
oils. 

The Spelling of A 

A was formerly spelt a-per-se, a ("a" by itself 
makes the word "a") of which A-per-se-A, A per- 
sey, and apersie were corruptions and synony- 
mous with superior, chief, first, etc. 

A in Latin and Law Latin 
Anglo-American law abounds in Latin and 
French words and phrases, and the use of A in 
these languages is important to the English- 
speaking lawyer. In Latin "A" was used both as 
an abbreviation and as a symbol. For example 
"A" was an abbreviation for "Aulus,". a praeno- 
men, or the first of the usual three names of a 
person by which he was distinguished from others 
of the same family; also for "ante" in "a. d.," 
ante diem (before the day), and for "anno" (year) 
in a. u. c., anno urbis conditae (the year of the 
building of the city) and in anno ab urbe condita 
(from the year of the building of the city). As a 
preposition, the form was either A, AB or ABS. 
A was used before consonants; ab was usually 
used before vowels, but sometimes before conso- 
nants, whereas abs was used before "c" or "t." 
The meaning was "from," "away from," "on the 
side of," "at," "after," "since," "by," "by means 
of," "out of," "with reference to," "in regard of," 
"near by," and "along." For example, Afronte 
in front; ab tergo, from behind; a puertitia, 
from youth; ab sole orbe, from or at sunrise; ab 
intestato, without a will, intestate. In law Latin, 
"a" means "by," "with," "from," "in," "of," and 
"on," and AB means "by," "from," and "in". 1 
C.J.S. p. 2. 

A in French and Law French 

In French A is a preposition, the meaning of 
which largely depends on context. It is usually 
translated as "into," "at," "to," "in," "by," "of," 
"with," "on," "from," "for," "under," "till," "with- 
in," "between," etc. It also changes into au and 
aux when combined with "the." A is also the 
third person, singular number, present tense, in- 
dicative mood of the verb avoir, (to have) : II a 
(he has). In law French "a" is used as a preposi- 
tion meaning "at," "for," "in," "of," "on," "to," 
and "with." 1 C.J.S. p. 2. 

A in Roman Criminal Law 

Among the Romans this letter was used in crim- 
inal trials. The judges were furnished with 
small tables covered with wax, and each one in- 
scribed on it the initial letter of his vote: A (ab- 
solvo) when he voted to acquit the accused; C 
(condemno) when he was for condemnation; and 
N L (non liquet), when the matter did not appear 
clearly, and he desired a new argument. 

The letter A (i. e. antiquo, "for the old law") 
was inscribed upon Roman ballots under the Lex 
Tabellaria, to indicate a negative vote; Tayl.Civ. 
Law, 191, 192. 


A as Indefinite Article 

A is the form of the indefinite article that is 
used before consonants and initial consonant 
sounds, on being used before initial vowel sounds, 
as, for example, a house, a year, a utility; but an 
oak, an ape and an hour, because the h is silent. 
.Formerly where the initial h of certain words was 
not accented, as historical, hypothetical, hotel, 
humble, etc., an was used, but now the h is no 
longer silent, and the best usage in both the Unit- 
ed States and England is to use a before such 
words. A hypothetical question, a historical mon- 
ument, a hotel, etc., are the correct forms. 

The word "a" has varying meanings and uses. 
"A" means "one" or "any," but less emphatically 
than either. It may mean one where only one is 
intended, or it may mean any one of a great num- 
ber. It is placed before nouns of the singular 
number, denoting an individual object or quality 
individualized. First Trust Joint Stock Land 
Bank of Chicago v. Armstrong, 222 Iowa 425, 269 
N.W. 502, 506, 107 L.R.A. 873. 

The article "a" is not necessarily a singular 
term; it is often used in the sense of "any" and is 
then applied to more than one individual object. 
Philadelphia & R. R. Co. v. Green & Flinn, 2 W.W. 
Harr. (Del.) 78, 119 A. 840, 846; In re Sanders, 
54 Law J.Q.B. The article "a" is not generally 
used in a singular sense unless such an intention 
is clear from the language of the statute, 1 C.J.S., 
A, p. 1, but statute providing that parties to "a" 
reorganization shall be deemed a single employ- 
ing unit referred to quality or nature of changes, 
rather than quantity, and meant not one or only 
one, but any, and fact that there had been more 
than one reorganization did not prevent statute 
from applying. Lindley v. Murphy, 387 111. 506, 
56 N.E.2d 832, 838. So under a statute providing 
that the issuance of "a" certificate to one carrier 
should not bar a certificate to another over the 
same route, a certificate could be granted to more 
than two carriers over the same route. State ex 
rel. Crown Coach Co. v. Public Service Commis- 
sion, 238 Mo.App. 287, 179 S.W.2d 123, 127. But the 
meaning depends on context. For example, in 
Workmen's Compensation Act, on, or in or about 
"a" railway, factory, etc., was held not to mean 
any railway, factory, etc., but the railway, fac- 
tory, etc., of the employer. Francis v. Turier, 
[1900] 1 Q.B. 478; 69 L.J.Q.B. 182; 81 L.T. 770; 48 
W.R. 228; 64 J.P. 53. 

Insurance against loss occasioned by "a sea" did 
not limit insured to loss occasioned by a single 
wave, but covered losses occasioned by heavy 
waves during voyage. Snowden v. Guion, 101 N. 
Y. 458, 5N.E. 322. 

In State ex rel. Atty. Gen. v. Martin, 60 Ark. 343, 30 S. 
W. 421, 28 L.R.A. 153, the state Constitution provided for 
"a judge" in each circuit. Owing to increase in judicial 
business, the Legislature provided for an additional judge 
for the sixth circuit. It was contended that the statute 
was unconstitutional. The court said: 

"Now, the adjective 'a,' commonly called the 'indefinite 
article,' and so called, too, because it does not define any 
particular person or thing, is entirely too indefinite, in 
the connection used, to define or limit the number of 


3 



A 


judges which the legislative wisdom may provide for the 
judicial circuits of the state. And it is perfectly obvious 
that its office and meaning was well understood by the 
framers of our constitution, for nowhere in that instru- 
ment do we find it used as a numerical limitation. It is 
insisted that if 'a' does not mean 'one,' and 'but one,' in 
the section quoted, then the way is open for a latitudi- 
narian construction in the various other sections where it 
occurs. 

" * • * So the question recurs as to the significance 
of the letter 'a,' for the convention must be taken to have 
meant what they have plainly said. It performs precisely 
the same office here as in every other section where it 
occurs. Section 6 of the article 7 says, 'A judge of the 
supreme court shall be learned in the law,' etc. ; section 
16 says, 'A circuit judge shall be learned in the law,' etc. ; 
section 4 1 , 'A justice of the peace shall be a qualified 
elector and a resident of the township,' etc. Does the 
word 'a' in these sections mean one, and only one, judge 
or justice? If so, which one ? Irt the same section m 
which 'a judge' occurs we find. 'He shall be "a" conserva- 
tor of the peace within the circuit.' Does 'a conservator' 
mean that he is to be the only conservator of the peace for 
the circuit? If so, this provision is plainly in conflict with 
others. See sections 4, 40. It is apparent that 'a' was used 
before the word 'judge' in the section under consideration 
because, according to our English idiom, the sentence 
could not have been euphoniously expressed without it. In 
some languages — the Latin and Russian, for instance — it 
would not have been used at all. It could have been omit- 
ted without in the least impairing the sense, and its use 
gave no additional force or meaning to the sentence. To 
use the illustration of the learned counsel for the state: 
If one orders 'a sack of flour, a ham, a horse, a ton of 
coal,' etc., it is understood he means but one. So it would 
be understood if he left off the 'a,' and said 'sack of flour, 
ham, horse, ton of coal,' the 'a' being used before the 
words beginning with the consonant sound simply to pre- 
serve the euphony. If the limitation is not in the word 
'judge' without the 'a,' there is certainly no restriction 
with it. According to Mr. Webster, 'a' means 'one' or 
'any,' but less 'emphatically than either.' It may mean 
one where only one is intended, or it may be any one of 
a great number. That is the trouble. Of itself, it is in 
no sense a term of limitation. If there were a dozen 
judges in any one circuit each would still be 'a judge' for 
that circuit. Mr. Webster also says, 'It is placed before 
nouns of the singular number, denoting an individual 
object, or quality individualized.' 'Quality' is defined as 
(1) 'the condition of being of such a sort as distinguished 
from others; (2) special or temporary character; profes- 
sion, occupation.' Webst. Diet. The 'a' was so used here. 
The character, or profession, individualized, was that of a 
judge. The functions of the office to be performed were 
those of 'a judge,' not governor, sheriff, or constable. A 
review of the various other provisions of the constitution, 
supra, where the word 'a' occurs, shows that no absurd 
consequences, such as filling the offices in other depart- 
ments with a multitudinous array of incumbents, could 
possibly result." 

Where the law required the delivery of a copy 
of a notice to husband and a copy to wife, the 
sheriff s return that he had delivered "a copy" to 
husband and wife was insufficient. State v. Da- 
vis, Tex.Civ.App., 139 S.W.2d 638, 640. 

In Lakeside Forge Co. v. Freedom Oil Works, 265 Pa. 
528, 109 A. 216, 217, it was said : 

" 'A car or two' signifies an indefinite small number, 
and may include as many as seven. In that respect the 
expression is similar to 'a few.' It must be construed 
with reference to the subject matter, and is not necessarily 
confined to one or two. It is like the words 'in a day or 
two.' " 

In Deutsch v. Mortgage Securities Co., 96 W.Va. 676, 123 
S.E. 793, the deed contained a covenant against construc- 
tion of flats or apartments and provided that no dwelling 
but "a one-family house" should be built on the lot. The 
grantee built two one-family dwelling houses; and it was 
held that he could properly do so. 

"A" is sometimes read as "the." Bookham v. 
Potter, 37 L.J.C.P. 276; L.R. 3 C.P. 490; 16 W.R. 
806; 18 L.T. 479, though the two terms are ordi- 


narily distinguishable. Howell v. State, 138 S.E. 
206, 164 Ga. 204. The grant of "a" right of sport- 
ing on land, gives only a concurrent right, but 
the grant of "the" right gives it exclusively. 
Sutherland v. Heathcote, [1892] 1 Ch. 475; 61 L.J. 
248; 66 L.T. 210. And a license to fish with "a" 
rod and line does not justify the use of more than 
one rod and one line. Combridge v. Harrison, 72 
L.T. 592; 64 L.J.M.C. 175; 59 J.P. 198. 

Hinson v. Hinson, 176 N.C. 613, 97 S.E. 465, in- 
volved a will providing that son taking care of 
widow should receive $100 "a year." It was held 
that the quoted words were not synonymous with 
annually, but merely fixed the rate of compensa- 
tion, and that there was no right to compensation 
until widow's death. 

AAA. Agricultural Adjustment Act. 

A. A. C. Anno ante Christum, the year before 
Christ. 

A. A. C. N. Anno ante Christum natum, the year 
before the birth of Christ. 

A AVER ET TENER. L. Fr. (L. Lat. habendum 
et tenendum.) To have and to hold. Co.Litt. §§ 
523, 524. A aver et tener a luy et a ses heires, a 
touts fours, — to have and to hold to him and his 
heirs forever. Id. § 625. See Aver et Tener. 

A. B. Able-bodied seaman. In English law a sea- 
man is entitled to be rated A. B. when he has 
served at sea three years before the mast. In the 
United States the term "Able Seaman" is used. 
For the requirements of able seaman, see 46 U.S. 
C.A. § 672. Also artium baccalaureus, bachelor of 
arts. In England, generally written B. A. 

A. B. A. American Bar Association. 

A. B. A. J. American Bar Association Journal. 

A BON DROIT. With good reason; justly; right- 
fully. 

A. C., Anno Christi, the year of Christ. 

A/ C means account and is much used by book- 
keepers. As used in a check, it has been held not 
a direction to the bank to credit the amount of 
the check to the person named, but rather a mem- 
orandum to identify the transaction in which the 
check was issued. Marsh v. First State Bank & 
Trust Co. of Canton, 185 29, 32. 

A CANCELLANDO. From cancelling. 3 Bl. 
Comm. 46. 

A CANCELLIS, The Chancellor. 

A CANCELLIS CURIAE EXPLODI. To be ex- 
pelled from the bar of the court. 

A CAPELLA OR A LA CAPELLA. In music, in 
the church style; also that the instruments are 
to play in unison with the vocal part, or that one 
part is to be played by a number of instruments. 

A CAUSA DE CY. For this reason. 


4 



A LATERE 


A. C. C. Agricultural Credit Corporation. 

A CE. For this purpose. 

A CEL JOUR. At this day. 

A CELO USQUE AD CENTRUM. From the 
heavens to the center of the earth. Or more 
fully, Cujus est solum ejus est usque ad coelum et 
ad inferos. The owner of the soil owns to the 
heavens and also to the lowest depths. Or, Cujus 
est solum est usque ad cceium, — the owner of the 
soil owns to the heavens. This doctrine has been 
questioned. Butler v. Frontier Telephone Co., 186 
N.Y. 486, 79 N.E. 716, 11 L.R.A.,N.S., 920— and 
the flight of airplanes and recent oil and gas reg- 
ulations undoubtedly have qualified the owner's 
dominion not only in the heavens but in the lowest 
depths. See American Digest System, Mines and 
Minerals, C-92, and Trespass, 010. 

A COMMUNI OBSERVANTIA NON EST RECE- 
DENDUM. From common observance there 
should be no departure; there must be no de- 
parture from common usage. 2 Coke, 74; Co. 
Litt. 186a, 229b, 365a; Wing. Max. 752, max. 203. 
A maxim applied to the practice of the courts, to 
the ancient and established forms of pleading and 
conveyancing, and to professional usage general- 
ly. Id. 752-755. Lord Coke applies it to common 
professional opinion. Co. Litt. 186a, 364b. 

A CONFECTIONE. From the making. Clay- 
ton's Case, 5 Coke, pt. II, la; Anonymous, 1 Ld. 
Raym. 480. 

A CONFECTIONE PRAESENTIUM. From the 
making of the indentures. Clayton's Case, 5 
Coke, pt. II, la. 

A CONSILIIS. (Lat. consilium , advice.) Of 
counsel; a counsellor. The term is used in the 
civil law by some writers instead of a responsis. 
Spelman, "Apocrisarius. " 

A CONTRARIO SENSU. On the other hand; in 
the opposite sense. 

A CUEILLETTE. In French law. In relation to 
the contract of affreightment, signifies when the 
cargo is taken on condition that the master suc- 
ceeds in completing his cargo from other sources. 
Arg.Fr. Merc. Law, 543. 

A. D. Anno Domini, in the year of our Lord. 

An information charging that act was committed on 4th 
day of August, "A. D. 190 alleged an impossible year 
"and it is quite evident that the last figure of the year 
was inadvertently omitted but what that figure was 
intended to be * * * cannot be inferred with any cer- 
tainty." People v. Weiss, 168 Ill.App. 502, 504. 

"The information alleges that the offense therein sought 
to be charged was committed 'on the 30th day of April, A. 
D. 19 .' There is no other allegation of time in the infor- 
formation, and it Is in effect and for all practical purposes 
wholly wanting in any allegation as to time. The time 
alleged is impossible and in that respect the information 
is absurd. The objection is not merely technical, as that 
term is commonly used, but is substantial and fatal." Peo- 
ple v. Wagner, 172 Ill.App. 84, 

A DATO. From the date. Cro.jac. 135. See A 
Datu. 


A DATU. Law Latin. From the date. Anony- 
mous, 1 Ld.Raym. 480; Haths v. Ash, 2 Salk. 413. 
See A Dato. 

A DIE CONFECTIONIS. From the day of the 
making. Barwick's Case, 5 Coke 93b. 

A DIE DATUS. From the day of the date. Hat- 
ter v. Ash, 1 Ld.Raym. 84; Anonymous, 1 Ld. 
Raym. 480; Seignorett v. Noguire, 2 Ld.Raym. 
1241. Used in leases to determine the time or 
running of the estate, and when so used includes 
the day of the date. Doe v. Watkins, 1 Cowp. 
189, 191. But contra, see Haths v. Ash, 2 Salk. 
413. 

A DIGNIORI FIERI DEBET DENOMINATIO. 
Denomination ought to be from the more worthy. 
The description (of a place) should be taken from 
the more worthy subject (as from a will). Fleta, 
lib. 4, c. 10, §12. 

A DIGNIORI FIERI DEBET DENOMINATIO ET 
RESOLUTIO. The title and exposition of a thing 
ought to be derived from, or given, or made with 
reference to, the more worthy degree, quality, or 
species of it. Wing. Max. 265, max. 75. 

A. E. C. Atomic Energy Commission. 

A FINE FORCE. Of pure necessity. 

A FORCE. Of necessity. 

A FORCE ET ARMIS. With force and arms. 

A FORFAIT ET SANS GARANTIE. In French 
law. A formula used in indorsing commercial 
paper, and equivalent to "without recourse." 

A FORTIORI. With stronger reason; much 
more. A term used in logic to denote an argu- 
ment to the effect that because one ascertained 
fact exists, therefore another, which is included 
in it, or analogous to it, and which is less im- 
probable, unusual, or surprising, must also exist. 

A GRATIA. By grace; not of right. 

A. H., Anno Hegirae (in the year of the hegira). 

A ISSUE. At issue. 

A JURE SUO CADUNT. They (for example, per- 
sons abandoning chattels) lose their right. 

A JUSTITIA (QUASI A QUODAM FONTE) OM- 
NIA JURA EMANANT. From justice, as a foun- 
tain, all rights flow. Brae. 2 b. 

A LA GRANDE GREVAUNCE. To the great 
grievance. 

A LARGE. Free; at large. 

A LATERE. Lat. Collateral. Used in this sense 
in speaking of the succession to property. Bract. 
20b, 62b. From, on, or at the side; collaterally. 
A latere ascendit (jus). The right ascends col- 
laterally. Justices of the Curia Regis are de- 
scribed as a latere regis residentes, sitting at the 
side of the King; Bract, fol. 108a; 2 Reeve, Hist. 
Eng.L. 250. 


5 



A LATERE 


In Civil Law and by Bracton, a synonym for e 
transverso, across. Bract, fol. 67a. 

Applied also to a process or proceeding. Keilw. 

159. Out of the regular or lawful course; inci- 
dentally or casually. Bract, fol. 42b; Fleta, lib. 
3, c. 15, §13. 

From the side of; denoting closeness of inti- 
macy or connection; as a court held before audi- 
tors specialiter a latere regis destinatis. Fleta, 
lib. 2, c. 2, § 4. 

Apostolic; having full powers to represent the 
Pope as if he were present. Du Cange, Legati, 
a latere; 4 Bla.Com. 306. 

A LIBELLIS. L. Lat. An officer who had charge 
of the li belli or petitions addressed to the sov- 
ereign. Calvin. A name sometimes given to a 
chancellor, (cancellarius,) in the early history of 
that office. Spelman, "Cancellarius." 

A L'IMPOSSIBLE NUL N'EST TENU. No one is 
bound to do the impossible. 

A LOUR FOY. In their allegiance. 

A LUY ET A SES HEIRES A TOUTS JOURS. 
To him and to his heirs forever. 

A. M. Ante meridiem, before noon. Only the 
abbreviation is ordinarily used. Orvik v. Cassel- 
man, 105 N.W. 1105, 15 N.D. 34. Also artium 
magister, master of arts. Also annus mirabilis, 
the wonderful year- 1666, the year of the defeat 
of the Dutch fleet and of the great London fire. 
Also anno mundi, in the year of the world; that 
is, when the creation of the world is said to have 
taken place, 4004 B. C. 

A. M. A. Agricultural Marketing Act. 

A MA INTENT. On my action. Mitchell v. 
Reynolds, 1 Smith Lead.Cas. (7th Am. ed.) 516. 

A MANIBUS. Lat. Royal scribe. Amanuensis. 

A MANU SERVUS. Lat. A handservant; a 
scribe; a secretary. 

A ME. (Lat. ego, I.) A term in feudal grants 
denoting direct tenure of the superior lord. 2 
Bell, H.L.Sc. 133. 

Unjustly detaining from me. He is said to 
withhold a me (from me) who has obtained pos- 
session of my property unjustly. Calvinus, Lex. 
To pay a me, is to pay from my money. 

A MENSA ET THORO. Lat. From table and 
bed, but more commonly translated, from bed 
and board. A kind of divorce, which is rather 
a separation of the parties by law, than a dis- 
solution of the marriage. 27 C.J.S., Divorce, § 

160. 

A MULTO FORTIORI. By far the stronger rea- 
son. 

A NATIVITATE. From birth, or from infancy. 
Denotes that a disability, status, etc., is congeni- 
tal 3 Bla.Comm. 332; Reg.Orig. 266b. 


A NON POSSE AD NON ESSE SEQUITUR AR- 
GUMENTUM NECESSARIE NEGATIVE, LICET 
NON AFFIRMATIVE. A literal translation — 
From impossibility to non-existence the inference 
follows necessarily in the negative, though not in 
the affirmative — is as ambiguous as the original. 
It could be translated thus: The negative infer- 
ence of non-existence necessarily follows from im- 
possibility of existence, but the affirmative infer- 
ence of existence cannot be drawn from mere pos- 
sibility. 

A. 0. C. Anno orbis conditi, the year of the crea- 
tion of the world. 

A OUTRANCE. To the bitter end; to excess; 
to the utmost extent. Frequently incorrectly 
written by persons with only a smattering of 
French a l'outrance. 

A PAIS. To the country; at issue. 

A PALATIO. L. Lat. From Palatium, (a pal- 
ace.) Counties palatine are hence so called. 1 
Bl.Comm. 117. See Palatium. 

A. P. C. Alien Property Custodian. 

A. P. C. N. Anno post Christum natum, the year 
after the birth of Christ. 

A PI RATI S AUT LATRONIBUS CAPTI LIBERI 
PERMANENT. Persons taken by pirates or rob- 
bers remain free. Dig. 49, 15, 19, 2; Gro. de J. B. 
lib. 3, c. 3, § 1. 

A PIRATIS ET LATRONIBUS CAPTA DOMI- 
NUM NON MUTANT. Capture by pirates and 
robbers does not change title. Bynk. bk. 1, c. 17; 

1 Kent, Comm. 108, 184. No right to booty vests 
in piratical captors; no right can be derived from 
them by recaptors to the prejudice of the original 
owners. 2 Wood.Lect. 428. 

A POSTERIORI. Lat. From the effect to the 
cause; from what comes after. A term used in 
logic to denote an argument founded on experi- 
ment or observation, or one which, taking ascer- 
tained facts as an effect, proceeds by synthesis 
and induction to demonstrate their cause. 

A. P. R. C. Anno post Roman conditam, year aft- 
er the foundation of Rome. 

A PRENDRE. L. Fr. To take; to seize. Bret 
a prendre la terre, a writ to take the land. Fet 
Ass. § 51. A right to take something out of the 
soil of another is a profit a prendre, or a right 
coupled with a profit. 1 Crabb, Real Prop. p. 
125, § 115. Distinguished from an easement. 5 
Adol. & E. 758. Sometimes written as one word, 
apprendre, apprender. See Profit a prendre. 

Rightfully taken from the soil. 1 N. & P. 172; 
Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 
333. 

A PRIORI. Lat. From the cause to the effect; 
from what goes before. A term used in logic to 


6 



AB ACTIS 


denote an argument founded on analogy, or ab- 
stract considerations, or one which, positing a 
general principle or admitted truth as a cause, 
proceeds to deduce from it the effects which must 
necessarily follow. 

A PROVISIONE VIRI. By the provision of man. 

4 Kent, Comm. 55. 

A QUO. Lat. From which. A court a quo (also 
written "a qua") is a court from which a cause 
has been removed. The judge a quo is the judge 
in such court. Clegg v. Alexander, 6 La. 339. 

A term used, with the correlative ad quern (to 
which), in expressing the computation of time, 
and also of distance in space. Thus, dies a quo, 
the day from which and dies ad quern, the day to 
which, a period of time is computed. So, termi- 
nus a quo, the point or limit from which, and 
terminus ad quern, the point or limit to which, a 
distance or passage in space is reckoned. 

A QUO INVITO ALIQUID EXIGI POTEST. 
From whom something may be exacted against 
his will. 

A. R. Anno Regni. In the year of the reign; as 
A. R. V. R. 22, (Anno Regni Victoriae Reginae 
vicesimo secundo) in the twenty-second year of 
the reign of Queen Victoria. 

A REMENAUNT. Forever. 

A RENDRE. (Fr. to render, to yield.) That 
which is to be rendered, yielded, or paid. Profits 
a rendre comprehend rents and services. Ham. 
N.P. 192. 

A RESCRIPTIS VALET ARGUMENTUM. An ar- 
gument from rescripts [i. e. original writs in the 
register] is valid. Co.Litt. 11a. 

A RESPONSIS. L. Lat. In ecclesiastical law. 
One whose office it was to give or convey an- 
swers; otherwise termed responsalis, and apocris- 
iarius. One who, being consulted on ecclesiastical 
matters, gave answers, counsel, or advice; other- 
wise termed a consiliis. Spelman, "Apocrisi- 
arius. " 

A RETRO. L. Lat. Behind; in arrear. Et redi- 
tus proveniens rode a retro fuerit, and the rent 
issuing therefrom be in arrear. Fleta, lib. 2, c. 
55, § 2; c. 62, § 14. 

A RUBRO AD NIGRUM. Lat. From the red to 
the black; from the rubric or title of a statute 
(which, anciently, was in red letters), to its body, 
which was in the ordinary black. Tray. Lat. Max.; 
Bell, "Rubric;" Erskine, Inst. 1,1, 49. 

A SAVOIR. To wit. 

A SUMMO REMEDIO AD INFERIOREM AC- 
TIONEM NON HABETUR REGRESSUS, NEQUE 
AUXILIUM. From (after using) the highest 
remedy, there can be no recourse (going back) to 
an inferior action, nor assistance, (derived from 


it.) Fleta, lib. 6, c. 1, § 2. A maxim in the old 
law of real actions, when there were grades in the 
remedies given; the rule being that a party who 
brought a writ of right, which was the highest 
writ in the law, could not afterwards resort or 
descend to an inferior remedy. Bract. 1 12b; 3 
Bl.Comm. 193, 194. 

A TEMPORE CUJUS CONTRARII MEMORIA 
NON EXISTET. From a time of which there is 
no memory to the contrary. 

A TENERIS ANNIS. By reason of youth. 

A TERME. For a or the term. 

A TERME DE SA VIE. For the term of his life. 
U.B. 3 Edw. II, 55. 

A TERME QUE NEST MYE ENCORE PASSE. 
For a term that has not yet passed. 

A TERME QUE PASSE EST. For a term that 
has passed. 

A TORT. Without reason; unjustly; wrongfully. 

A TORT ET A TRAVERS. Without considera- 
tion or discernment. 

A TORT OU A DROIT. Right or wrong. 

A VERBIS LEGIS NON EST RECENDENDUM. 
The words of a statute must not be departed from. 
5 Coke 119; Wing. Max. 25. A court is not at 
liberty to disregard the letter of a statute, in fa- 
vor of a supposed intention. 1 Steph.Comm. 71; 
Broom, Max. 268. 

A VINCULO MATRIMONII. Lat. From the bond 
of matrimony. A term descriptive of a kind of 
divorce, which effects a complete dissolution of 
the marriage contract. See Divorce. 

A B (fr. Abba, Syr., Father). The eleventh month 
of the Jewish civil year, and the fifth of the sa- 
cred year. It answers to the moon that begins in 
July, and consists of thirty days. On the 24th 
is observed a feast in memory of the abolishment 
of the Sadducean law, which required sons and 
daughters to be equal heirs and heiresses of their 
parents' estates. Brown's Diet, of Bible, John's 
Bib.Antiq. AB, at the beginning of English-Saxon 
names of places, is generally a contraction of ab- 
bot or abbey; whence it is inferred that those 
places once had an abbey there, or belonged to 
one elsewhere, as Abingdon in Berkshire. 
Blount's Law Gloss. Wharton's Law Lexicon. 

AB. ABR. Abridgment. 

AB ABUSU AD USUM NON VALET CONSE- 
QUENTLY A conclusion s to the use of a thing 
from its abuse is invalid. Broom, Max. 17. 

AB ACTIS. Lat. An officer having charge of 
acta, public records, registers, journals, or min- 
utes; an officer who entered on record the acta 
or proceedings of a court; a clerk of court; a 


7 



AB AGENDO 


notary or actuary. Calvin. Lex. Jurid. See "Acta." 
This, and the similarly formed epithets a cancellis, 
a secretis, a libellis, were also anciently the titles 
of a chancellor, (cancellarius,) in the early his- 
tory of that office. Spelman, "Cancellarius. " 

AB AGENDO. Disabled from acting; unable to 
act; incapacitated for business or transactions of 
any kind. 

AB ANTE. Lat. Before; in advance. Thus, a 
legislature cannot agree ab ante to any modifica- 
tion or amendment to a law which a third person 
may make. Allen v. McKean, 1 Sumn. 308, Fed. 
Cas.No.229 (college charter). 

AB ANTECEDENTE. Lat. Beforehand; in ad- 
vance. 5 M. & S. 1 10. 

AB ANTIQUO. From old times; from ancient 
time; of old; of an ancient date. 3 Bl.Comm. 95. 

AB ASSUETIS NON FIT INJURIA. From things 
to which one is accustomed (or in which there 
has been long acquiescence) no legal injury or 
wrong arises. If a person neglect to insist on 
his right, he is deemed to have abandoned it. 
Amb. 645; 3 Brown, Ch. 639; Jenk.Cent.Introd. vi. 

AB EPISTOLIS. Lat. An officer having charge 
of the correspondence (epistolce) of his superior 
or sovereign; a secretary. Calvin.; Spiegelius. 

AB EXTRA. (Lat. extra, beyond, without.) 
From without. Lunt v. Holland, 14 Mass. 151. 

AB INCONVENIENT!. From hardship, or incon- 
venience. An argument founded upon the hard- 
ship of the case, and the inconvenience or disas- 
trous consequences to which a different course of 
reasoning would lead. Barber Asphalt Paving 
Co. v. Hayward, 248 Mo. 280, 154 S.W. 140. 

AB INITIO. Lat. From the beginning; from the 
first act; entirely; as to all the acts done; in 
the inception. A party may be said to be a tres- 
passer, an estate to be good, an agreement or deed 
to be void, or a marriage or act to be unlawful, 
ab initio. Plow. 6a, 16a; 1 Bl.Comm. 440; Hop- 
kins v. Hopkins, 10 Johns. (N.Y.) 369. 

Before. Contrasted in this sense with ex post 
facto, 2 Shars.Bla.Comm. 308; or with postea, 
Calvinus, Lex., initium. 

Validity of insurance policy ab initio, In re Millers' & 
Manufacturers' Ins. Co., 97 Minn. 98, 106 N.W. 485; Uncon- 
stitutional statute as not void ab initio, State v. Poulin, 
105 Me. 224, 74 A. 119, 24 L.R.A.,N.S., 408; physical inca- 
pacity, marriage not void ab initio, Bennett v. Bennett, 169 
Ala. 618, 53 So. 986, L.R.A.1916C, 693. 

AB INITIO MUNDI. Lat. From the beginning 
of the world. Ab initio mundi usque ad hodier- 
num diem, from the beginning of the world to 
this day. Y.B.M. 1 Edw. Ill, 24. 

AB INTESTAT. Intestate. 2 Low.Can. 219. 
Merlin, Repert. 

AB INTESTATO. - Lat. In the civil law. From 
an intestate; from the intestate; in case of intes- 
tacy. Hcereditas ab intestato, an inheritance de- 


rived from an intestate. Inst. 2, 9, 6. Successio 
ab intestato, succession to an intestate, or in case 
of intestacy. Id. 3, 2, 3; Dig. 38, 6, 1. This an- 
swers to the descent or inheritance of real estate 
at common law. 2 Bl.Comm. 490, 516; Story, 
Confl.Laws, § 480. "Heir ab intestato." 1 Burr. 
420. The phrase "ab intestato" is generally used 
as the opposite or alternative of ex testamento, 
(from, by, or under a will.) Vel ex testamento, 
uel ab intestato [hcereditates] pertinent, — inheri- 
tances are derived either from a will or from an 
intestate, (one who dies without a will.) Inst. 2, 
9, 6; Dig. 29, 4; Cod. 6, 14, 2. 

AB INVITO. Unwillingly. Against one's will. 
By or from an unwilling party. A transfer ab 
invito is a compulsory transfer. See in invitum 
and invito. 

AB JUDICATIO. A removal from court. 

AB IRATO. Lat. By one who is angry. A de- 
vise or gift made by a man adversely to the in- 
terest of his heirs, on account of anger or hatred 
against them, is said to be made ab irato. A suit 
to set aside such a will is called an action ab irato. 
Merlin, Repert. Ab irato. Snell v. Weldon, 239 
111. 279, 87 N.E. 1022. 

AB OLIM. Of old. 

AB OVO. The egg, hence from the beginning in 
allusion to old Roman custom of beginning a meal 
with eggs and ending with fruit, ab ovo usque ad 
mala. To begin with eggs and end with fruit. 
Also, at times in allusion to poets who began his- 
tory of Trojan war with the egg from which Hel- 
en was said to have been hatched in contrast 
with Homer who plunged into the midst of things, 
or in media res. 

AB 1URBE CONDITA. See A.U.C. 

ABACIST or ABACISTA. A caster of accounts, 
an arithmetician. 

ABACTION. A carrying away by violence. 

ABACTOR. A stealer and driver away of cattle 
or beasts by herds or in great numbers at once, as 
distinguished from a person who steals a single 
animal or beast. Also called abigeus, q. v. 

ABADENGO. In Spanish law. Land owned by 
an ecclesiastical corporation, and therefore ex- 
empt from taxation. In particular, lands or towns 
under the dominion and jurisdiction of an abbot. 
Escriche, Dice. Raz. 

ABALIENATE. To transfer interest or title. 

ABALIENATIO. In Roman law. The perfect 
conveyance or transfer of property from one Ro- 
man citizen to another. This term gave place to 
the simple alienatio, which is used in the Digest 
and Institutes, as well as in the feudal law, and 
from which the English "alienation" has been 
formed. Inst. 2, 8, pr.; Id. 2, 1, 40; Dig. 50, 16, 
28; Calvinus, Lex., Abalienatio. 



ABANDONMENT 


ABALIENATION. In the Civil Law, a making 
over of realty, or chattels to another by due 
course of law. 

ABAMITA. Lat. In the civil law. A great-great- 
grandfather's sister, (abavi soror.) Inst. 3, 6, 6; 
Dig. 38, 10, 3; Calvinus, Lex. Called amita maxi- 
ma.. Id. 38, 10, 10, 17. Called, in Bracton, aba- 
mita magna. Bract, fol. 68b. 

ABANDON. To desert, surrender, forsake, or 
cede. To relinquish or give up with intent of nev- 
er again resuming one's right or interest. Bur- 
roughs v. Pacific Telephone 8s Telegraph Co., 220 
P. 152, 155, 109 Or. 404. To give up or to cease 
to use. Southern Ry. Co. v. Commonwealth, 105 
S.E. 65, 67, 128 Va. 176. To give up absolutely; 
to forsake entirely; to renounce utterly; to re- 
linquish all connection with or concern in; to 
desert. Commonwealth v. Louisville 8s N. R. Co., 
258 S.W. 101, 102, 201 Ky. 670. It includes the in- 
tention, and also the external act by which it is 
carried into effect. 

ABANDONEE. A party to whom a right or prop- 
erty is abandoned or relinquished by another. 
Applied to the insurers of vessels and cargoes. 
Lord Ellenborough, C.J., 5 Maule 8s S. 82; Abbott, 
J., Id. 87; Holroyd, J., Id. 89. 

ABANDONMENT. The surrender, relinquish- 
ment, disclaimer, or cession of property or of 
rights. Stephens v. Mansfield, 11 Cal. 363 (land) ; 
Munsey v. Marnet Oil 8s Gas Co. (Tex.Civ.App.) 
199 S.W. 686, 689 (oil lease) ; Shepard v. Alden, 
201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094 
(bowling alleys) ; Union Grain 8s Elevator Co. v. 
McCammon Ditch Co., 240 P. 443, 445, 41 Idaho 
216 (water rights) . 

The giving up of a thing absolutely, without ref- 
erence to any particular person or purpose, as 
throwing a jewel into the highway; leaving a 
thing to itself, as a vessel at sea; vacating prop- 
erty with the intention of not returning, so that 
it may be appropriated by the next corner. 2 Bl. 
Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310. 
Intention to forsake or relinquish the thing is an 
essential element, to be proved by visible acts. 
Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan 
v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586 
(auto parts) ; Kunst v. Mabie, 72 W.Va. 202, 77 
S.E. 987, 990 (uncut timber) ; Dow v. Worley, 
126 Okl. 175, 256 P. 56, 60 (oil and gas lease) ; 
Duryea v. Elkhorn Coal & Coke Corporation, 123 
Me. 482, 124 A. 206, 208. 

The voluntary relinquishment of possession of 
thing by owner with intention of terminating his 
ownership, but without vesting it in any other per- 
son. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P. 
2d 356, 357. The relinquishing of all title, posses- 
sion, or claim, or a virtual, intentional throwing 
away of property. Foulke v. New York Consol. R. 
Co., 228 N.Y. 269, 127 N.E. 237, 238, 9 A.L.R. 1384 
(package in subway car). 

Abandonment in law depends upon concurrence of inten- 
tion to abandon and some overt act or failure to act which 
carries implication that owner neither claims nor retains 


any interest. Stinnett v. Kinslow, 238 Ky. 812, 38 S.W. 2d 
920, 922. 

"Abandonment" includes both the intention to abandon 
and the external act by which the intention is carried into 
effect. In determining whether one has abandoned his 
property or rights, the intention is the first and para- 
mount object of inquiry, for there can be no abandon- 
ment without the intention to abandon. Boatman v. An- 
dre, 44 Wyo. 352, 12 P.2d 370, 373. Generally, "abandon- 
ment" can arise from a single act or from a series of acts. 
Holly Hill Lumber Co. v. Grooms, 16 S.E. 2d 816, 821, 198 
S.C. 118. 

Time is not an essential element of "abandonment," 
although the lapse of time may be evidence of an inten- 
tion to abandon, and where it is accompanied by acts man- 
ifesting such an intention, it may be considered in deter- 
mining whether there has been an abandonment. Ullman 
ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287. 

Mere nonuser is not necessarily an abandonment. Har- 
nett v. Dickinson, 93 Md. 258. 48 A. 838 (home); Welsh v. 
Taylor, 131 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535: Phillis v. 
Gross, 32 S.D. 438. 143 N.W. 373, 378 (contract for deed). 
See, however, Corkran, Hill & Co. v. A. H. Kuhlemann Co., 
136 Md. 525, 1 1 1 A. 471, 474 (trademark). Distinguished 
from neglect: City of Vallezo v. Burrill, 64 Cal.App. 399, 
221 P. 676 (pipe line). 

"Abandonment" differs from surrender in that surrender 
requires an agreement, Noble v. Sturm, 210 Mich. 462, 
178 N.W. 99, 103; and from forfeiture, in that forfeiture 
may be against the intention of the party alleged to have 
forfeited, Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307, 
308. 

In the Civil and French Law it is the act by 
which a debtor surrenders his property for the 
benefit of his creditors; Merlin, Repert. See 
Abandonment for Torts. 

Actions, In General 

Failure for indefinite period to prosecute action 
or suit, Morris v. Phifer State Bank, 90 Fla. 55, 
105 So. 150, unless caused by an injunction, Barton 
v. Burbank, 138 La. 997, 71 So. 134. By statute in 
some states a definite time has been stated which 
will render a suit abandoned and subject to dis- 
missal. Public Utilities Commission v. Smith, 298 
111. 151, 131 N.E. 371, 375. 

Failure to submit issue by instruction, Unter- 
lachner v. Wells, 317 Mo. 181, 296 S.W. 755, 756; 
failure to perform conditions necessary to valid 
appeal or writ of error, Lewis v. Martin, 210 
Ala. 401, 98 So. 635; Board of Public Instruction 
for Marion County v. Goodwin, 89 Fla. 379, 104 
So. 779; failure to take issue upon garnishee's an- 
swer, Phelps v. Schmuck, 151 Kan. 521, 100 P.2d 
67, 71. 

Assignments of Error 

Not argued. Meyer v. Hendrix, 311 Ill.App. 605, 
37 N.E. 2d 445, 446. 

Not presented in brief. Roubay v. United 
States, Q.C.A.Cal., 115 F.2d 49, 50. 

Not supported by point, argument or authority. 
Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591, 593. 

Bankrupt's Property 

In re Mirsky, C.C.A.N.Y., 124 F.2d 1017. 

Building Restrictions 

Violations of restrictive covenant, Meyer v. 
Stein, 284 Ky. 497, 145 S.W.2d 105, 107. 

9 



ABANDONMENT 


Cemeteries 

No new burials and neglect of graves, Andrus 
v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730; 
casual use for farming purpos,s, In re Gundry, 
294 Mich. 221, 292 N.W. 709, 711 ; Misuse as to new 
interments, failure to cut grass r care for head- 
stones, In re Board of Transpor ation of City of 
New York, 251 N.Y.S. 409, 413, 14 Misc. 557. 

Children 

Desertion or willful forsaking. Cannon v. 
State, 53 Ga.App. 264, 185 S.E. 364, 366. 

Foregoing parental duties. Wright v. Fitzgib- 
bons, Miss., ?1 So. 2d 709, 710. 

Withdrawal or neglect of parental duties. In 
re Potter, 85 Wash. 617, 149 P. 23. 

Relinquishment of parental claims. Glendin- 
ning v. McComas, 188 Ga. 345, 3 S.E. 2d 562, 563. 

Separation agreement committing custody of 
child to father. Gardner v. Hall, 132 N.J.Eq. 64, 
26 A.2d 799, 809. 

Separation from the child and failure to supply 
its needs. State v. Clark, 148 Minn. 389, 182 N.W. 
452, 453. 

Criminal offense, separation from child, and 
failure to supply its needs. Curtis v. State, 48 
Ga.App. 135, 172 S.E. 99, 100. 

Defeating recovery for wrongful death. In re 
Schiffrin's Estate, 272 N.Y.S. 583, 585, 152 Misc. 
33, 

Compensation Claims 

Failure to file application for hearing. Hanks 
v. Southern Public Utilities Co., 210 N.C. 312, 186 
S.E. 252. 

Condemnation Proceedings 

Dismissal of a petition. Will County v. Cleve- 
land, 372 Iii. Ill, 22 N.E.2d 929, 930. 

Failure of commissioners to report, Kean v. 
Union County Park Commission, 129 N.J.Eq. 67, 
18 A.2d 279, 280, or judgment determining invalid- 
ity. City of Los Angeles v. Abbott, Cal., 12 P.2d 
19, 22; failure to pay moneys adjudged, Detroit 
International Bridge Co. v. American Seed Co., 
228 N.W. 791, 795, 249 Mich. 289. 

Construction Work 

Cessation of operation and intent of owner and 
contractor to cease operations permanently, or at 
least for definite period, or some fair notice or 
knowledge of abandonment by lien claimant, ac- 
tual or implied. Block v. Love, 136 Or. 685, 1 P.2d 
588, 589. 

Contracts 

To constitute "abandonment" by conduct, ac- 
tion relied on must be positive, unequivocal, and 
inconsistent with the existence of the contract, 
Mood v. Methodist Episcopal Church South, Tex. 
Civ.App., 289 S.W. 461, 464. Abandonment is a 
matter of intent, Lohn v. Fletcher Oil Co., 38 Cal. 
App.2d 26, 100 P.2d 505, 507, and implies not only 


nonperformance, but an intent not to perform 
which may be inferred from acts which necessari- 
ly point to actual abandonment, Losei Realty Cor- 
poration v. City of New York, 254 N.Y. 41, 171 
N.E. 899. 

Copyrights 

Common-law rights, Tamas v. 20th Century Fox 
Film Corporation, Sup., 25 N.Y.S. 2d 899, 901; sale 
and delivery of uncopyrighted painting to state- 
owned public institution, Pushman v. New York 
Graphic Soc., Sup., 25 N.Y.S. 2d 32, 34; copyright- 
ed lectures not delivered to general public, but 
only to paying audiences and classes, National 
Institute for Improvement of Memory v. Nutt, 
D.C.Conn., 28 F.2d 132, 134. 

Crops 

Sharecropping tenant's willful failure to culti- 
vate crops, Heaton v. Slaten, 25 Ala.App. 81, 141 
So. 267, 268. 

Ditches 

Town's nonuser for a short period after per- 
mitting ditch to be blocked was insufficient. Fos- 
ter v. Webster, Sup., 44 N.Y.S. 2d 153, 156. Mere 
nonuser does not constitute. Musselshell Valley 
Farming & Livestock Co. v. Cooley, 86 Mont. 276, 
283 P. 213, 218. After prescriptive right attached, 
water shortage in subsequent years rendering 
use of ditch unnecessary would not constitute. 
Bowman v. Bradley, 270 P. 919, 922, 127 Or. 45. 

Domicile 

Permanent removal from, Stafford v. Mills, 57 
N.J.L. 570, 31 A. 1023. 

Easements 

To establish "abandonment" of an easement 
created by deed, there must be some conduct on 
part of owner of servient estate adverse to and 
inconsistent with existence of easement and con- 
tinuing for statutory period, or nonuser must be 
accompanied by unequivocal and. decisive acts 
clearly indicating an intent on part of owner of 
easement to abandon use of it. Richardson v. 
Tumbridge, 111 Conn. 90, 149 A. 241, 242. 

Permanent cessation of use or enjoyment with no inten- 
tion to resume or reclaim. Welsh v. Taylor, 134 N.Y. 450, 
31 N.E. 896, 18 L.R.A. 535; Corning v. Gould, 16 Wend., 
N.Y., 531. Intention and completed act are both essential. 
Town of Orlando v. Stevens, 90 Okl. 2, 215 P. 1050, 1051., 
Goodman v. Brenner, 219 Mich. 55, 188 N.W. 377; brick- 
ing up of the openings for stairway and halls of adjoining 
buildings, Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 178; 
where object of use of dedicated property wholly fails, 
Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922. But 
mere nonuser is not sufficient. Smelcer v. Rippetoe, 24 
Tenn.App. 516, 147 S.W.2d 109, 113, 114; O'Barr v. Dun- 
can, 187 Ga. 642, 2 S.E. 2d 82, 83; right of way acquired by 
grant. Burnham v. Mahoney, 222 Mass. 524, 111 N.E. 396, 
398; Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 88 
S.E. 337, 339. Where owner of building had easement in 
adjoining wall, wrecking building preparatory to erection 
of a new building, did not cause loss of easement. Joel v. 
Publix-Lucas Theater, 193 Ga. 531, 19 S.E.2d 730, 736. And 
a mere temporary or occasional obstruction or use of an 
easement by the servient owner is not an "abandonment". 
Gerber v. Appel, Mo.App., 164 S.W. 2d 225, 228. However 
nonuser of railroad crossing for more than 20 years, and 


10 



ABANDONMENT 


conveyance of strips of land adjoining original right of 
way to railroad in fee simple, without reservation, con- 
stituted abandonment of easement in crossing. Cityco 
Realty Co. v. Philadelphia, B. & W. R. Co., 158 Md. 221, 
148 A. 441, 444. 

Employment 

During Christmas holidays, notwithstanding a 
call at employer's office and discussing business, 
Stinson v. Dairymen's League Co-op. Ass'n, 186 A. 
687, 688, 14 N.J.Misc. 671. Deviation from route, 
Loper v. Morrison, 145 P.2d 4, 23 Cal. 2d 600; truck 
driver unnecessarily permitting passenger to 
drive, Ginther v. J. P. Graham Transfer Co., 33 A. 
2d 923, 924, 348 Pa. 60. Contra where truck driv- 
er remained on driver's seat, directing operation 
of truck, and watched passenger's driving, Gin- 
ther v. J. P. Graham Transfer Co., 27 A. 2d 712, 
714, 149 Pa. Super. 635; and where truck driver 
became sick, Matzek v. United Storage & Truck- 
ing Co., 186 A. 193, 122 Pa. Super. 146. Truck 
drivers becoming intoxicated and remaining from 
work, Naylon v. State, Ct.Cl., 40 N.Y.S.2d 587, 590; 
Coal miner contrary to orders, riding on an empty 
car, Soroka v. Philadelphia & Reading Coal & 
Iron Co., 138 Pa.Super. 296, 10 A.2d.904, 907. But 
automobile driver's choosing longer route by 
paved highways to pick up a needed change of 
clothing at home did not constitute an "abandon- 
ment" of his employment. Mitchell v. Mitchell 
Drilling Co., 154 Kan. 117, 1 14 P.2d 841, 844. 

Exceptions on Appeal 

Not argued in brief, Currin v. Currin, 219 N.C. 
815, 15 S.E.2d 279, 282. Not set out in brief, Star 
Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C. 
330, 23 S.E.2d 32, 40. Not complaining of rulings 
on exceptions, Buckalew v. Brockner, La:App., 
11 So. 2d 720, 722. Failing to answer appeal to 
re-urge exception, John Myers Implement Co. v. 
De Boer, La.App., 9 So. 2d 832, 833. Filing an- 
swers without insisting on decision on exceptions 
to jurisdiction ratione personae, Weaver v. Mans- 
field Hardwood Lumber Co., La.App., 4 So. 2d 781, 
782. 

Family 

Where father during three or four months fol- 
lowing his departure contributed only $32 to sup- 
port of wife and three minor children, Howton v. 
Howton, 51 Cal.App.2d 323, 124 P.2d 837, 839. Con- 
tra where father helped to support family, In re 
Hess' Estate, 257 N.Y.S. 278, 282, 143 Misc. 335. 

Franchises 

'Inferior service and lack of any service for few 
short intervals held insufficient to show "aban- 
donment" of ferry franchise. McConnell v. Crit- 
tenden County, 250 Ky. 359, 63 S.W.2d 329. 

Highways 

Where public ceases to use street or highway 
under circumstances indicating intent to abandon, 
Grand Trunk Western R. Co. v. City of Flint, D. 
C.Mich., 55 F.2d 384, 386. But short sections of 
highway, discontinued by state highway commis- 
sion upon relocating highway, were not aban- 


Boned. Mosteller v. Southern Ry. Co., 220 N.C. 
275, 17 S.E.2d 133, 135. And cultivation of high- 
way for short period by abutting landowners was 
not an "abandonment" of highway. Chicago & 
E. I. Ry. Co. v. Road Dist. No. 10, 353 111. 160, 187 
N.E. 155, 157. 

Homesteads 

Removal with an intention never to return con- 
stitutes an "abandonment", and nothing less does. 
Farmers' State Bank of Georgetown v. Roberts, 
Tex.Civ.App., 59 S.W.2d 1089. Must be voluntary 
action, Wood v. Wood, 203 Ark. 344, 157 S.W.2d 
36, 38. Temporary absence with intention to re- 
turn, Brewer v. Brewer, 268 Ky. 625, 105 S.W.2d 
582, 584. Absence of a design of permanent 
abandonment, Lanier v. Lanier, 95 Fla. 522, 116 
So. 867, 868. Absence by necessity, Hinds v. Buck, 
177 Tenn. 444, 150 S.W.2d 1071, 1072; sickness, In 
re Dunlap's Estate, 161 Or. 93, 87 P.2d 225, 229; 
advancing years and inability to care for selves, 
Gulf Production Co. v. Continental Oil Co., Tex., 
132 S.W.2d 553, 573, 576; to rent to winter tour- 
ists, Collins v. Collins, 150 Fla. 374, 7 So. 443, 444. 
A deed with reservation of a life estate did not 
constitute "abandonment" of homestead. Arighi 
v. Rule & Sons, 41 Cal.App. 852, 107 P.2d 970, 972. 
Nor did filing of suit to partition land. Carr v. 
Langford, Tex.Civ.App., 144 S.W.2d 612, 613. 

Husband 

The act of a husband or wife who leaves his or 
her consort willfully, and with an intention of 
causing perpetual separation. People v. Cullen, 
153 N.Y. 629, 47 N.E. 894, 44 L.R.A. 420. 

Wife's leaving husband for a trip to Europe of less than 
two months against husband's wishes, did not constitute. 
In re Boesenberg's Estate, 37 N.Y.S. 2d 194, 196, 179 Misc. 3. 

Abandonment as cause for divorce must be willful and 
intentional without intention of returning, and without 
consent of spouse abandoned. Hickey v. Hickey, 152 
Wash. 429, 277 P. 994, 995. Husband forcibly expelling 
wife from home, Tenorio v. Tenorio, 44 N.M. 89, 98 P.2d 
838, 847. Refusal to talk to husband did not establish. 
Wyahllyeth v. Wyahllyeth, 182 Md. 663, 32 A.2d 380, 381. 
Wife refusing without good cause to accompany husband 
when moving, Ventrano v. Vetrano, 54 N.Y.S. 2d 537, 539. 

Word "abandoned," within statute providing that no 
wife who has abandoned husband shall have right of elec- 
tion to take against provisions of husband's will, has 
meaning ascribed thereto in matrimonial litigations, and 
carries no connotation of infidelity. Adultery of aban- 
doned wife did not constitute "abandonment". In re 
Green's Estate, 280 N.Y.S. 692, 702, 155 Misc. 641. 

A wife who told husband to get out of wife's home, and 
made no effort to effect a reconciliation, was not entitled 
to appointment as administratrix of his estate. In re Ban- 
aszak's Estate, 1 N.Y.S. 2d 15, 164 Misc. 829. 

Where husband paid wife living apart in caring for their 
child, she had not abandoned husband so as to preclude 
the recovery of an industrial pension for his death. John- 
son v. Department of Labor and Industries of Washington, 
3 Wash. 2d 257, 100 P.2d 382, 385. But wife who had, prior 
to husband's death, left husband, resisted efforts toward a 
reconciliation, and instituted annulment proceedings, was 
not entitled to compensation for husband's death. La 
Fountain v. Industrial Accident Commission, 13 Cal.App. 2d 
130, 56 P.2d 257, 258. 

Insured Property 

A relinquishment or cession of property by the 
owner to the insurer of it, in order to claim as for 


11 



ABANDONMENT 


a total loss. Chicago S. S. Lines v. U. S. Lloyds, 
C.C.A.I11., 12 F.2d 733, 738. 

The term is used only in reference to risks in naviga- 
tion; but the principle is applicable in fire insurance, 
where there are remnants, and sometimes, also, under 
stipulations in life policies in favor of creditors. Cincin- 
nati Ins. Co. v. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339. 

Inventions 

The giving up of rights by inventor, as where 
he surrenders his idea or discovery or relinquishes 
the intention of perfecting his invention, and so 
throws it open to the public, or where he negli- 
gently postpones the assertion of his claims or 
fails to apply for a patent, and allows the public 
to use his invention. Electric Storage Battery 
Co. v. Shimadzu, Pa., 59 S.Ct. 675, 681, 307 U.S. 5, 
613,616, 83 L.Ed. 1071. 

Disclaimer of claim of patent, Triumph Explosives v. 
Kilgore Mfg. Co., C.C.A.Md., 128 F.2d 444, 448; delaying 

12 years after reducing shoe to practice before applying 
for patent, Salisbury v. Pediforme Shoe Co., D.C.N.Y., 31 
F.Supp. 3, 7; omitting for many years to take any step 
to reinstate or renew rejected application, Na-Mac Prod- 
ucts Corporation v. Federal Tool Corporation, c.c.A.m., 
118 F.2d 167, 171; acquiescing in rejection of claims in 
patent application for device shown in later application 
for patent, Na-Mac Products Corporation v. Federal Tool 
Corporation, C.C.A.I11., 118 F.2d 167, 171; Na-Mac Prod- 
ucts Corporation v. Federal Tool Corporation, D.C.I11., 36 
F.Supp. 426, 430. But mere lapse of time before an inven- 
tor applies for a patent is not sufficient. Imperial Brass 
Mfg. Co. v. Bonney Forge & Tool Works, D.C.Pa., 38 F. 
Supp. 829, 832. Patent application was not filed until 21/2 
years after date of conception of invention, Chicago Raw- 
hide Mfg. Co. v. National Motor Bearing Co., D.C.Cal., 50 
F.Supp. 458, 460. Nor is disclosing invention to individ- 
uals with purpose of interesting them in production or 
manufacture. Pennington Engineering Co. v. Houde En- 
gineering Corporation, D.C.N.Y., 43 F.Supp. 698, 706. 

Leases in General 

To constitute an "abandonment" of leased 
premises, there must be an absolute relinquish- 
ment of premises by tenant consisting of act and 
intention. Schnitzer v. Lanzara, 115 N.J.L. 332, 
180 A. 234. 

Closing up butcher shop with intention of giving up busi- 
ness and in removing all perishable merchandise, although 
tenant retained key and did not notify landlord of inten- 
tion to vacate premises, held an "abandonment" and not 
a "surrender" of premises. Schnitzer v. Lanzara, 115 N. 
J.L. 332, 18 A. 234. Refusal by lessee of lessor's offer to 
reconstruct burned building, Girard Trust Co. v. Tremblay 
Motor Co., 291 Pa. 507, 140 A. 506, 512. But tenants sur- 
rendering premises pursuant to notice of forfeiture did 
not "abandon" premises. Becker v. Rute, 228 Iowa 533, 
293 N.W. 18, 21. 

Marriage 

Withdrawal or denial of marital obligations 
without just cause, Reppertv. Reppert, Del. Super., 

13 A. 2d 705, 1 Terry 492. 

Mineral Leases 

"Abandonment" consists of an actual act of re- 
linquishment, accompanied with the intent and 
purpose permanently to give up a claim and right 
of property. A distinction exists between "aban- 
donment" and "surrender" which is the relinquish- 
ment of a thing or a property right thereto to 
another, which is not an essential element of 


abandonment. Distinction also exists between 
elements of "abandonment" and those of estoppel. 
Neither formal surrender of oil and gas lease nor 
release is necessary to effectuate "abandonment." 
Sigler Oil Co. v. W. T. Waggoner Estate, Tex. Civ. 
App., 276 S.W. 936, 938. Voluntary, intentional 
relinquishment of known right. Pure Oil Co. v. 
Sturm, 43 Ohio App. 105, 182 N.E. 875, 882. 

Failing to start work under the lease for more than 40 
years, Chapman v. Continental Oil Co., 149 Kan. 822, 89 
P.2d 833, 834; breach of implied obligation to proceed 
with search and development of land with reasonable dili- 
gence, Wood v. Arkansas Fuel Oil Co., D.C.Ark., 40 F. 
Supp. 42, 45; no drilling on leased land for more than two 
years, and failure to pay rentals, Rehart v. Klossner, 48 
Cal. App. 2d 40, 1 19 P.2d 145, 147; drawing of casing from 
well with no intention of replacing it, Seaboard Oil Co. v. 
Commonwealth, 193 Ky. 629, 237 S.W. 48, 50. But there 
must be an intention by lessee to relinquish leased prem- 
ises, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 
950, 951; or an intention not to drill, Carter Oil Co. v. 
Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And ceasing 
of operations is not alone sufficient. Fisher v. Dixon, 188' 
Okl. 7, 105 P.2d 776, 777. Doing no substantial work for 
about one year immediately preceding suit to cancel lease, 
but remaining in possession and doing some work, Deace 
v. Stribling, Tex.Civ.App., 142 S.W. 2d 564, 567; disconnec- 
tion of well for a brief interval while well was being 
drilled to a greater depth, Cole v. Philadelphia Co., 345 Pa. 
315, 26 A. 2d 920, 923; abandoning work on unproductive 
well was not an abandonment of leased premises. Smith 
v. Tullos, 195 La. 400, 196 So. 912, 914. 

Mining Claims 

Relinquishment of a claim held by location with- 
out patent, where the holder voluntarily leaves his 
claim to be appropriated by the next corner, with- 
out any intention to retake or resume it, and re- 
gardless of what may become of it in the future. 
O'Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65, 
135 P. 913, 918. The term includes both the in- 
tention to abandon and the act by which the 
abandonment is carried into effect. Peachy v. 
Frisco Gold Mines Co., D.C.Ariz., 204 F. 659, 668. 

Abandonment takes place whenever locator leaves claim 
without intention of holding it. Crane v. French, 39 Cal. 
App. 2d 642, 104 P.2d 53, 60. But mere absence from claim, 
is not sufficient. Crane v. French, 39 Cal. App. 2d 642, 104 
P.2d 53, 60. And one co-owner's abandoning his interest 
is not an "abandonment" of entire claim. Crane v. 
French, 39 Cal.App.2d 642, 104 P.2d 53, 60. 

Motions 

Motion not called to court's attention until final 
hearing, Williams v. Smith, 149 Fla. 735, 6 So. 2d 
853, 854. Grounds not insisted on, Meador v. Now- 
ell, 67 Ga.App. 564, 21 S.E.2d 312, 314; not argued 
in brief, In re Horton's Estate, 154 Kan. 269, 1 18 P. 
2d 527, 531. Rulings not urged on appeal, Spears v. 
Brown Paper Mill Co., La.App., 9 So. 2d 332, 334. 
Admitting sufficiency of evidence to sustain ver- 
dict, Copeland v. State, 66 Ga.App. 142, 17 S.E.2d 
288, 289. But service of answer after making of 
motion to strike out portions of a complaint was 
not an "abandonment" of the motion. Russo v. 
Signode Steel Strapping Co., Sup., 37 N.Y.S.2d 
166. 

Office 

Abandonment of a public office is a species of 
resignation, but differs from resignation in that 


12 



ABANDONMENT 


resignation is a formal relinquishment, while 
abandonment is a voluntary relinquishment 
through nonuser. State v. Harmon, 115 Me. 268, 
98 A. 804, 805. 

It is not wholly a matter of intention, but may result 
from the complete abandonment of duties of such a con- 
tinuance that the law will infer a relinquishment. Wilk- 
inson v. City of Birmingham, 193 Ala. 139, 68 So. 999, 1002. 
It must be total, and under such circumstances as clearly 
to indicate an absolute relinquishment; and whether an 
officer has abandoned an office depends on his overt acts 
rather than his declared intention. Parks v. Ash, 168 Ga. 
868, 149 S.E. 207, 209. It implies nonuser, but nonuser does 
not, of itself constitute abandonment. The failure to per 
form the duties pertaining to the office must be with actual 
or imputed intention on the part of the officer to abandon 
and relinquish the office. The intention may be inferred 
from the acts and conduct of the party, and is a question 
of fact. Abandonment may result from an acquiescence 
by the officer in his wrongful removal or discharge, but, 
as in other cases of abandonment, the question of inten- 
tion is involved. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696, 
698. 

Temporary absence is not ordinarily sufficient to consti- 
tute an "abandonment of office". State v. Green, 206 Ark. 
361, 175 S.W.2d 575, 577. Responding to mandatory call 
for military service in emergency conditions, Caudel v. 
Prewitt, 296 Ky. 848, 178 S.W.2d 22, 25. And failure of 
former officers to assert right while decision of eligibility 
of elected successors was pending, was not an "abandon- 
ment" creating vacancy. State v. Levy Court of New Cas- 
tle County, Del., 3 W.W.Harr. 554, 140 A. 642, 645. 

Oil Wells 

Where owner ceased working on well to work 
elsewhere to procure money to do further work on 
well, well was not abandoned. Jones v. Jos. 
Greenspon's Son Pipe Corporation, 313 Ill.App. 
651, 40 N.E.2d 561. 

Patents 

There may be an abandonment of a patent, 
where the inventor dedicates it to the public use; 
and this may be shown by his failure to sue in- 
fringers, sell licenses, or otherwise make efforts 
to realize a personal advantage from his patent. 
Ransom v. New York, 4 Blatchf. 157, 20 Fed.Cas. 
286. 

Pleadings 

The filing of a second amended complaint which 
was complete in itself and which did not reserve 
to itself any part of the original complaint or 
first amended complaint constituted an "abandon- 
ment" of the two former complaints. Seely v. 
Gilbert, 16 Wash.2d 611, 134 P.2d 710, 712. Cross- 
complainant by failing to take proper steps in 
trial court to have judgment that was silent on 
issues tendered by cross-complaint and answer 
thereto corrected did not thereby "abandon" cross- 
complaint. Brown v. National Life Ins. Co. of 
Washington County, Vt., 112 Ind.App. 684, 46 N.E. 
2d 246, 249. 

Prescriptive Rights 

Non-use alone is insufficient. Burkman v. City 
of New Lisbon, 246 Wis. 547, 19 N.W.2d 311, 313; 
Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 
109, 113, 114. 

Privileges 

Witness before grand jury who answered ques- 
tions and immediately asked to retract answers, 


and thereupon asserted his privilege, did not 
"abandon" right to claim the privilege. United 
States v. Weisman, C.C.A.N.Y., 1 1 1 F.2d 260, 261 . 

Property 

"Abandoned property" in a legal sense is that to 
which owner has relinquished all right, title, claim, 
and possession, with intention of not reclaiming it 
or resuming its ownership, possession or enjoy- 
ment. Jackson v. Steinberg, Or., 200 P.2d 376, 
377, 378. 

There must be concurrence of act and intent, that is, the 
act of leaving the premises or property vacant, so that it 
may be appropriated by the next comer, and the intention 
of not returning. Cohn v. San Pedro, L. A. & S. L. R. Co., 
103 Cal.App. 496, 284 P. 1051, 1052. Relinquishment of all 
title, possession, or claim; a virtual intentional throwing 
away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 
699, 702. Actual relinquishment, gas in pipe was not aban- 
doned. Hein v. Shell Oil Co., 315 Ill.App. 297, 42 N.E.2d 
949, 952. Nor was a sewing machine and phonograph left 
with landlady as security. Dickens v. Singer Sewing 
Mach. Co., 140 So. 296, 298, 19 La.App. 735. 

Property for Special Purposes 

Moving of church to erect drilling rig held not 
"abandonment of use for church purposes." Aban- 
donment meant to wholly discontinue church use, 
and additional use was not sufficient. Skipper v. 
Davis, Tex.Civ.App., 59 S.W.2d 454, 457. 

Merger of churches was not. Bridgeport- City Trust Co. 
v. Bridgeport Hospital, 120 Conn. 27, 179 A. 92, 94. Nor 
where intention was that nonconforming use as a fraterni- 
ty house would be resumed. State ex rel. Morehouse v. 
Hunt, 235 Wis. 358, 291 N.W. 745, 751, 752. Nor mere 
cessation of a nonconforming use in zoned area for a rea- 
sonable period. Beyer v. Mayor and Council of Baltimore 
City, Md., 34 A. 2d 765, 768, 769. Nor a discontinuance of 
a garage during war while owner served in army and on 
return postponed repossession for garage purposes due to 
city's using building. State v. Murray, 195 Wis. 657, 219 
N.W. 271, 272. But removal of manufacturing equipment 
from manufacturing plant, was. Francisco v. City of Co- 
lumbus, Ohio App., 31 N.E. 2d 236, 243. And also disposing 
of all machinery, taking down smokestack and using prop- 
erty for storage purposes, notwithstanding vague intention 
of resuming slaughter house business. Beyer v. Mayor and 
City Council of Baltimore City, 182 Md. 444, 34 A. 2d 765, 
768, 769. 

Dedicated use must wholly fail. Kirchen v. Remenga, 
291 Mich. 94, 288 N.W. 344, 350, 351. Erection of buildings 
on park lands without objection of adjoining owners was 
not sufficient. Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 
344, 350, 351. Nor city's permitting a citizen's rock garden 
on small portion of street improvement tract. Kendrick 
V. City of St. Paul, 213 Minn. 283, 6 N.W.2d 449, 451. Nor 
diverting parkway to roadway. Ford v. City of Detroit, 
273 Mich. 449, 263 N.W. 425, 426. Nor tearing down school 
building for salvaging material for erection of a waiting 
station for school children. McCullough v. Swifton Consol. 
School Dist., 202 Ark. 1074, 155 S.W.2d 353. Nor temporary 
disuse of school when land was offered for sale, later 
rescinded. Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584. 

Railroad Property 

"Abandon" means to relinquish or give up with 
intent of never again resuming or claiming one's 
rights or interests in, to give up absolutely, to for- 
sake entirely, to renounce utterly, to relinquish all 
connection with or concern in. Capital Transit Co. 
v. Hazen, 93 F.2d 250, 251, 68 App.D.C. 91. Aban- 
donment did not mean a partial disuse with an in- 
tention to complete station on a contingency, but 
meant a final relinquishment, or giving up with- 


13 



ABANDONMENT 


out intention of resuming. Wheeling & L. E. Ry. 
Co. v. Pittsburgh & W. V. Ry. Co., C.C.A.Ohio, 33 
F.2d WO, 392. And to constitute an "abandon- 
ment" of right of way, there must be not only an 
actual relinquishment of the property, but an in- 
tention to abandon it. Abens v. Chicago, B. & Q. 
R. Co., 388 111. 261, 57 N.E.2d 883, 887. 

Nonuser is a fact in determining it, but, though contin- 
ued for years, is not conclusive. Arlington Realty Co. v. 
Keller, 105 N.J.Eq. 196, 147 A. 437, 438. Plowing up ser- 
vient estate is not enough. Les v. Alibozek, 269 Mass. 153. 
168 N.E. 919, 922, 66 A.L.R. 1094. Nor proposal to deliver 
and receive freight by motortrucks. New York Dock Ry. 
v Pennsylvania R. Co., D.C.Pa., 1 F.Supp. 20, 21. But 
failure to maintain and use that part of railroad on land 
conveyed constituted "abandonment." Atlantic Coast Line 

R. Co. v. Sweat, 177 Ga. 698, 171 S.E. 123, 129. 

Remedies 

Election of one of two inconsistent remedies, 
Lumber Mutual Casualty Ins. Co. of New York v. 
Friedman, 176 Misc. 703, 28 N.Y.S.2d 506, 509. 

Rights in General 

The relinquishment of a right. It implies some 
act of relinquishment done by the owner without 
regard to any future possession by himself, or by 
any other person, but with an intention to aban- 
don. Dyer v. Sanford, 9 Mete., Mass., 395, 43 Am. 
Dec. 399. 

It Is properly confined to incorporeal hereditaments, 
since legal rights once vested must be divested according to 
law. But equitable rights may be abandoned. Great Falls 
Co. v. Worster, 15 N.H. 412; Cox v. Colossal Cavern Co., 
210 Ky. 612, 276 S.W. 540; Inhabitants of School Dist. No. 
4 v. Benson, 31 Me. 381, 52 Am. Dec. 618. 

Ship and Freight 

Act by which shipowner surrenders ship and 
freight to a trustee for benefit of claimants. See 
46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson 

S. S. Co., 148 F. 185, 78 C.C.A. 319. 

In France and other countries it is the surrender to a 
person having a claim arising out of a contract made with 
the master. American Transp. Co. v. Moore, 5 Mich. 368. 

Taxing Power 

Delegation of taxing power by legislature to 
city was not "abandonment of taxing power". 
Mouledoux V. Maestri, 197 La. 525, 2 So. 2d 11, 16. 

Trade-marks and Trade Names 

There must be not only nonuser, but also an 
intent to abandon. Rockowitz Corset 8s Brassiere 
Corporation v. Madame X Co., 248 N.Y. 272, 162 N. 
E. 76, 78; Manz v. Philadelphia Brewing Co., D.C. 
Pa., 37 F.Supp. 79, 81. To give up use of trade- 
marks permanently. Neva-Wet Corporation of 
America v. Never Wet Processing Corporation, 
277 N.Y. 163, 13 N.E.2d 755, 761. 

Disuse not sufficient in itself. Sherwood Co. v. Sherwood 
Distilling Co., 177 Md. 455, 9 A.2d 842, 845. Nor using 
owner's name. Bunte Bros. v. Standard Chocolates, D.C. 
Mass., 45 F.Supp. 478, 480. However, nonuser with ex- 
tensive use by another is sufficient. Sherwood Co. v. Sher- 
wood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. But not 
where receiver continuously operated trade-mark licensee's 
property. American Dirigold Corporation v. Dirigold Met- 
als Corporation. C.C.A. Mich., 125 F.2d 446, 454. Nor sale 
of all physical assets of manufacturing company by trustee 


in bankruptcy. Reconstruction Finance Corporation v. J. 
G. Menihan Corporation, D.C.N.Y., 28 F.Supp. 920, 923. 

Trusts 

State aid for hospital, with stipulation for beds 
for emergency cases, did not establish an "aban- 
donment of trust". Noble v. First Nat. Bank of 
Anniston, 241 Ala. 85, 1 So.2d 289, 291. 

Water Rights 

'"Abandonment," as applied to water rights may 
be defined to be an intentional relinquishment 
of a known right. It is not based on a time ele- 
ment, and mere nonuser will not establish "aban- 
donment" for any less time," at least, than statu- 
tory period, controlling element in "abandonment" 
being matter of intent. Hammond v. Johnson, 94 
Utah 20, 66 P.2d 894, 899. To desert or forsake 
right. The intent and an actual relinquishment 
must concur. Central Trust Co. v. Culver, 23 Colo. 
App. 317, 129 P. 253, 254. Concurrence of relin- 
quishment of possession, and intent not to resume 
it for beneficial use. Neither alone is sufficient. 
Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 
P.2d 206, 211. 

Not using water when there was no water in creek be- 
cause of another user's obstruction of flow and appropria- 
tion of all the water did not constitute. New Mexico Prod- 
ucts Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 
634, 641. Nor did milling company's permitting water's 
use by upper irrigators. Hutchinson v. Stricklin, 146 Or. 
285, 28 P.2d 225, 230. Nor permitting upper appropriators 
to erect dam and store water. Irion v. Hyde, Mont., 81 P. 
2d 353, 356. Nor change of place of use of decreed water 
right. Harris v. Chapman, 51 Idaho 283, 5 P.2d 733, 737. Nor 
failure to use all water to which entitled. Horse Creek 
Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 
P.2d 572, 577. Use of only enough water to water stock, 
because supply was insufficient to irrigate land. Federal 
Land Bank v. Morris, 112 Mont. 445, 116 P.2d 1007, 1010. 
But right to use a particular quantity of water may be 
abandoned by failure to apply such water to a beneficial 
use for an unreasonable period of time. Cundy v. Weber, 
68 S.D. 214, 300 N.W. 17, 22. 

Wife 

Abandonment justifying divorce is a voluntary, 
unjustified, and final separation of one of married 
parties from the other, accompanied by an inten- 
tion to terminate the marital relation, or an un- 
justified refusal to resume suspended cohabita- 
tion, as where husband left his wife because his 
children by former marriage could not live peace- 
ably with second wife. Schwartz v. Schwartz, 
158 Md. 80, 148 A. 259, 263. 

Refusal by husband of request by sick wife without 
means of support, to return to home held "abandonment" 
as respects disorderly conduct. People v. Schenkel, 252 
N.Y.S. 415, 418, 140 Misc. 843. Contra where separation 
agreement existed. People v. Gross, 291 N.Y.S. 597, 601, 
161 Misc. 514. Where parties separated by agreement, and 
husband, in lieu of periodic payments for wife's support, 
made conveyance constituting valuable consideration, held 
not "abandonment" as respects husband's statutory right 
against wife's will. In re McCann's Estate, 281 N.Y.S. 445, 
155 Misc. 763; or even if wife was justified in leaving hus- 
band on account of his cruel treatment, there must be a 
desertion without consent. In re Stolz' Estate, 260 N.Y.S. 
906, 145 Misc. 799. But while there can be no "desertion" 
for divorce where parties are apart by consent, yet there 
may be an "abandonment" as respects separate mainte- 
nance, although the separation originated and continued 
by consent of parties. Pierson v. Pierson, 189 A. 391, 395, 


14 



ABATEMENT 


15 N.J.Misc. 117. And as respects maintenance, husband's 
conduct rendering wife's condition unendurable constitutes 
"abandonment." Carder v. Carder, 227 Mo.App. 1005, 60 
S. W.2d 706. Cruel treatment, Fallon v. Fallon, 111 N.J. 
Eq. 512, 162 A. 406, 408. Husband's refusal of wife's 
request to resume living with her, Clark v. Clark, 176 A. 
81, 83, 13 N.J.Misc. 49; or refusal to receive wife at his 
residence, is an "abandonment" of her. Hockaday v. 
Hockaday, 182 La. 88, 161 So. 164. But not a husband's 
removal from wife's home after wife had instituted sep- 
aration action, Kenneson v. Kenneson, 36 N.Y.S.2d 676, 685, 
178 Misc. 832; or where husband moved out on command 
of wife's father. Anonymous v. Anonymous, 24 N.Y.S.2d 613, 
618. Mere failure to support wife is not an abandonment 
within Divorce Act. Biddle v. Biddle, 104 N.J.Eq. 313, 145 
A. 639, 640; but failing to provide wife with necessities, 
etc., is. Cooper v. Cooper, 176 Md. 695, 4 A. 2d 714, 716. 
And convict sentenced for life did not abandon wife. In 
re Lindewall's Will, 18 N.Y.S.2d 281, 284, 259 App. Div. 196. 

ABANDONMENT FOR TORTS. In the civil law. 
The relinquishment of a slave or animal who had 
committed a trespass to the person injured, in dis- 
charge of the owner's liability for such trespass or 
injury. Just. Inst. 4, 8, 9. A similar right exists 
in Louisiana. Fitzgerald v. Ferguson, 1 1 La. Ann. 
396. 

ABANDUN, ABANDUM, or ABANDONUM. Any- 
thing sequestered, proscribed, or abandoned. 
Abandon, i. e., in bannum res missa, a thing ban- 
ned or denounced as forfeited or lost, whence to 
abandon, desert, or forsake, as lost and gone. 
Cunningham; Cowell. 

ABARNARE. Lat. To discover and disclose to a 
magistrate any secret crime. Leges Canuti, cap. 
10 . 

ABATABLE NUISANCE. A nuisance which is 
practically susceptible of being suppressed, or ex- 
tinguished, or rendered harmless, and whose con- 
tinued existence is not authorized under the law. 
Fort Worth 8s Denver City Ry. Co. v. Muncy, Tex. 
Civ. App., 31 S.W.2d 491, 494. 

ABATAMENTUM. L. Lat. In old English law. 
An abatement of freehold; an entry upon lands 
by way of interposition between the death of the 
ancestor and the entry of the heir. Co. Litt. 277a; 
Yel. 151. 

ABATARE. To abate. Yel. 151. 

ABATE. To throw down, to beat down, destroy, 
quash. 3 Shars. Bla. Com. 168; Klamath Lum- 
ber Co. v. Bamber, 142 P. 359, 74 Or. 287. , To do 
away with or nullify or lessen or diminish, In re 
Stevens' Estate, Cal. App., 150 P.2d 530, 534; to 
bring entirely down or demolish, to put an end to, 
to do away with, to nullify, to make void, Sparks 
Milling Co. v. Powell, 283 Ky. 669, 143 S.W.2d 75, 
77. 

See, also, Abatement; Abatement and Revival. 

ABATEMENT. A reduction, a decrease, or a 
diminution. The Vestris, D.C.N.Y., 53 F.2d 847, 
852. 

A judgment afforded a defense by way of abatement. 
Panos v. Great Western Packing Co., Cal. App, , 126 P.2d 
889, 892. 


Contracts 

A reduction made by the creditor for the 
prompt payment of a debt due by the payor or 
debtor. Wesk. Ins. 7. 

Debts 

In equity, when equitable assets are insufficient 
to satisfy fully all the creditors, their debts must 
abate in proportion, and they must be content with 
a dividend, for cequitas est quasi cequalitas. 

Freehold 

The unlawful entry upon and keeping posses- 
sion of an estate by a stranger, after the death 
of the ancestor and before the heir or devisee 
takes possession. Such an entry is technically 
called an "abatement," and the stranger an "aba- 
tor." It is, in fact, a figurative expression, de- 
noting that the rightful possession or freehold of 
the heir or devisee is overthrown by the unlawful 
intervention of a stranger. Abatement differs 
from intrusion, in that it is always to the preju- 
dice of the heir or immediate devisee, whereas the 
latter is to the prejudice of the reversioner or 
remainder-man; and disseisin differs from them 
both, for to disseise is to put forcibly or fraudu- 
lently a person seised of the freehold out of pos- 
session. Brown v. Burdick, 25 Ohio St. 268. By 
the ancient laws of Normandy, this term was 
used to signify the act of one who, having an ap- 
parent right of possession to an estate, took pos- 
session of it immediately after the death of the 
actual possessor, before the heir entered. (How- 
ard, Anciennes Lois des Francais, tome 1, p. 539.) 

Legacies 

A proportional diminution or reduction of the 
pecuniary legacies, when the funds or assets out 
of which such legacies are payable are not suffi- 
cient to pay them in full. Ward, Leg. p. 369, c. 6, 
§ 7; 1 Story, Eq. Jur. § 555; 2 Bl. Comm. 512, 513; 
In re 'Hawgood's Estate, 37 S.D. 565, 159 N.W. 
1 17, 123. Legacy accepted in lieu of dower. In re 
Hartman's Estate, 233 Iowa 405, 9 N.W.2d 359, 362. 

Nuisance 

The removal of a nuisance. 3 Bla. Comm. 5. 
See Nuisance. 

Taxes and Duties 

A drawback or rebate allowed in certain cases 
on the duties due on imported goods, in considera- 
tion of their deterioration or damage suffered 
during importation, or while in store. A diminu- 
tion or decrease in the amount of tax imposed 
upon any person. Rogers v. Gookin, 198 Mass. 
434, 85 N.E. 405 (real estate taxes); Central Na- 
tional Bank v. City of Lynn, 156 N.E. 42 (Shares 
in national banks) 259 Mass. 1. 

As applied to taxation, it presupposes error or mistake 
in assessment. Gulf States Steel Co. v. U. S., C.C.A.Ala., 
56 F.2d 43, 46. 

Abatement of taxes relieves property of its share of the 
burdens of taxation after the assessment has been made 
and the tax levied. Sheppard v. Hidalgo County, 126 Tex. 
550, 83 S.W.2d 649, 657. 


15 



ABATEMENT 


ABATEMENT AND REVIVAL 
Actions at Law 

As used in reference to actions at law, word 
abate means that action is utterly dead and can- 
not be revived except by commencing a new ac- 
tion. First Nat. Bank v. Board of Sup'rs of Harri- 
son County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R. 
566. 

The overthrow of an action caused by the de- 
fendant's pleading some matter of fact tending to 
impeach the correctness of the writ or declaration, 
which defeats the action for the present, but does 
not debar the plaintiff from recommencing it in a 
better way. 3 Bla. Comm. 301; 1 Chit. PL (6th 
Lond. Ed.) 446; Guild v. Richardson, 6 Pick. 
(Mass.) 370; Wirtele v. Grand Lodge A. 0. U. W., 

1 1 1 Neb. 302, 196 N.W. 510. See Plea in Abate- 
ment. 

To put a final end to suit, Dodge v. Superior Court in 
and for Los Angeles County, 139 Cal.App. 178, 33 P.2d 695, 
696; overthrow of pending action apart from cause of 
action, Burnand v. Irigoyen, 56 Cal.App. 2d 624, 133 P.2d 
3, 6. 

On plaintiffs death, Piukkula v. Pillsbury Astoria 
Flouring Mills Co., 150 Or. 304, 44 P.2d 162, 99 A.L.R. 259. 
Mere lapse of time between the death of a party and the 
taking of necessary steps to continue the action by or 
against the heir or personal representative does not work 
an abatement, Whaley v. Slater, 202 S.C. 182, 24 S.E.2d 
266, 267. 

Cause of Action 

Destruction of cause of action. In re Thomas- 
son, Mo., 159 S.W.2d 626, 628. 

Chancery Practice 

It differs from an abatement at law in this: 
that in the latter the action is entirely dead and 
cannot be revived; but in the former the right to 
proceed is merely suspended, and may be revived; 
F. A. Mfg. Co. v. Hayden & Clemons, C.C.A.Mass., 
273 F. 374; Mutual Ben. Health & Accident Ass'n 
v. Teal, D.C.S.C., 34 F.Supp. 714, 716. 

In England, declinatory pleas to the jurisdiction and 
dilatory to the persons were (prior to the judicature act) 
sometimes, by analogy to common law, termed "pleas In 
abatement." 

Declinatory and dilatory pleas, see Story, Eq. PI. § 708. 

Death of one of parties, Geiger v. Merle, 360 111. 497, 196 
N.E. 497, 502. Want of proper parties, 2 Tidd Pr. 932; 
Story, Eq.Pl. § 354; Witt v. Ellis, 2 Cold., Tenn., 38; peti- 
tion for widow's allowance, In re Samson's Estate, 142 Neb. 
556, 7 N.W. 2d 60, 62, 144 A.L.R. 264. 

ABATOR. In real property law, a stranger who, 
having no right of entry, contrives to get posses- 
sion of an estate of freehold, to the prejudice of 
the heir or devisee, before the latter can enter, 
after the ancestor's death. Litt. § 397. In the 
law of torts, one who abates, prostrates, or de- 
stroys a nuisance. 

ABATUDA. Anything diminished. Moneta aba- 
tuda is money clipped or diminished in value. 
Cowell; Dufresne. 

ABAVIA. Lat. In the civil law. A great-great- 
grandmother. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; 
Bract, fol. 68b. 


ABAVITA. A great-great-grandfather's sister. 
Bract, fol. 68b. This is a misprint for abamita 
(q. v.). Burrill. 

ABAVUNCULUS. Lat. In the civil law. A great- 
great-grandmother's brother (avauice f rater). 
Inst. 3, 6, 6; Dig. 38, 10, 3; Calvinus, Lex. Called 
avunculus maximus. Id. 38, 10, 10, 17. Called by 
Bracton and Fleta abavunculus magnus. Bract, 
fol. 68b; Fleta, lib. 6, c. 2, § 19. 

ABAVUS. Lat. In the civil law. A great-great- 
grandfather. Inst. 3, 6, 4; Dig. 38, 10, 1, 6; Bract, 
fol. 67a. 

ABBACINARE. To blind by placing a burning 
basin or red-hot irons before the eye's. A form of 
punishment in the Middle Ages. Also spelt 
abacinare. The modern Italian is spelt with two 
b's, and means to blind. Abbacination. Blinding 
by placing burning basin or red-hot irons before 
the eyes. See Abbacinare. 

ABBACY. The government of a religious house, 
and the revenues thereof, subject to an abbot, as 
a bishopric is to a bishop. Cowell. The rights 
and privileges of an abbot. 

ABBEY. A monastery or nunnery for the use of 
an association of religious persons, having an ab- 
bot or abbess to preside over them. 

ABBOT. A prelate in the 13th century who had 
had an immemorial right to sit in the national 
assembly. Taylor, Science of Jurispr. 287. 

ABBOT, ABBAT. The spiritual superior or gover- 
nor of an abbey. Feminine, Abbess. 

ABBREVIATE OF ADJUDICATION. In Scotch 
law. An abstract of the decree of adjudication, 
and of the lands adjudged, with the amount of the 
debt. Adjudication is that diligence (execution) 
of the law by which the real estate of a debtor is 
adjudged to belong to his creditor in payment of a 
debt; and the abbreviate must be recorded in the 
register of adjudications. 

ABBREVIATIO PLACITORUM. An abstract of 
ancient judicial records, prior to the Year Books. 
See Steph. PI. (7th Ed.) 410. 

ABBREVIATIONS. Shortened conventional ex- 
pressions, employed as substitutes for names, 
phrases, dates, and the like, for the saving of 
space, of time in transcribing, etc. Abbott. 

The abbreviations in common use in modern times con- 
sist of the initial letter or letters, syllable or syllables, of 
the word. Anciently, also, contracted forms of words, 
obtained by the omission of letters intermediate between 
the initial and final letters were much in use. These lat- 
ter forms are now more commonly designated by the term 
contraction. 

For Table of Abbreviations, see Appendix. 

ABBREVIATIONUM ILLE NUMERUS ET SEN- 
SUS ACCIPIENDUS EST, UT CONCESSIO NON 
SIT INANIS. In abbreviations, such number and 
sense is to be taken that the grant be not made 
void. 9 Coke, 48. 


16 



ABETTOR 


ABBREVIATORS. In ecclesiastical law. Officers 
whose duty it is to assist in drawing up the Pope's 
briefs, and reducing petitions into proper form to 
be converted into papal bulls. 

ABBROCHMENT, or ABBROACHMENT. The act 
of forestalling a market, by buying up at whole- 
sale the merchandise intended to be sold there, 
for the purpose of selling it at retail. See Fore- 
stalling the Market. 

ABBUTTALS. See Abuttals. 

ABDICATION. The act of a sovereign in re- 
nouncing and relinquishing his government or 
throne, so that either the throne is left entirely 
vacant, or is filled by a successor appointed or 
elected beforehand. 

Also, where a magistrate or person in office 
voluntarily renounces or gives it up before the 
time of service has expired. 

The act of abdicating ; giving up of office, power or au- 
thority, right or trust; renunciation. McCormick v. Eng- 
strom, 1 19 Kan. 698, 241 P. 685, 688. 

Abdication of rights to property may constitute an 
assignment. In re Johnston's Estate, 186 Wis. 599, 203 
N.W. 376, 377. 

It differs from resignation, in that resignation is made 
by one who has received his office from another and 
restores it into his hands, as an inferior into the hands of 
a superior; abdication is the relinquishment of an office 
which has devolved by act of law. It is said to be a 
renunciation, quitting, and relinquishing, so as to have 
nothing further to do with, a thing, or the doing of such 
actions as are inconsistent with the holding of it. Cham- 
bers. 

ABDITORIUM. An abditory or hiding place, to 
hide and preserve goods, plate or money. Jacob. 

ABDUCTION. In criminal law. The offense of 
taking away a wife, child, or ward, by fraud and 
persuasion, or open violence. 3 Bl.Comm. 139-141; 
State v. Chisenhall, 106 N.C. 676, 11 S.E. 518 (fe- 
male under 14) ; State v. Hopper, 186 N.C. 405, 
119 S.E. 769, 772 (wife). 

To take away surreptitiously by force in kid- 
napping. Doss v. State, 220 Ala. 30, 123 So. 231, 
232, 68 A.L.R. 712. 

The unlawful taking or detention of any female 
for purposes of marriage, concubinage, or prosti- 
tution. 4 Steph.Com. 84; People v. Crotty, 55 
Hun, 611, 9 N.Y.S. 937. In many states this of- 
fense is created by statute and in most cases ap- 
plies to females under a given age. 

By statute in some states, abduction includes 
the withdrawal of a husband from his wife, as 
where another woman alienates his affection and 
entices him away and causes him to abandon his 
wife. Humphrey v. Pope, 122 Cal. 253, 54 P. 847. 

ABEARANCE. Behavior; as a recognizance to 
be of good abearance signifies to be of good be- 
havior. 4 Bl.Comm. 251, 256. 

ABEREMURDER. (From Sax. abere, apparent, 
notorious; and mord, murder.) Plain or down- 

Black's Law Dictionary Revised 4th Ed. -2 


right murder, as distinguished from the less 
heinous crime of manslaughter, or chance medley. 
Spelman; Cowell; Blount. 

ABESSE. Lat. In the civil law. To be absent; 
to be away from a place. Said of a person who 
was extra continentia urbis, (beyond the suburbs 
of the city.) 

ABET. A French word combined of two words 
"a" and ."beter" — to bait or excite an animal. It 
includes knowledge of the wrongful purpose of the 
perpetrator and counsel and encouragement in 
the crime. People v. Terman, 4 Cal.App.2d 345, 40 
P.2d915, 916. 

To encourage, incite, or set another on to com- 
mit a crime. This word is always applied to aid- 
ing the commission of a crime. To abet another 
to commit a murder is to command, procure, or 
counsel him to commit it, Old Nat. Brev. 21; Co. 
Litt. 475; to command, procure, counsel, encour- 
age, induce, or assist, Short v. Commonwealth, 240 
Ky. 477, 42 S.W.2d 696, 697; to encourage, counsel, 
induce, or assist, State v. Watts, Nev., 296 P. 26. 
To facilitate the commission of a crime, promote 
its accomplishment, or help in advancing or bring- 
ing it about. State v. Lord, 42 N.M. 638, 84 P.2d 80, 
86. It includes knowledge of wrongful purpose of 
perpetrator. Daniels v. State, 58 Ga.App. 599, 
199 S.E. 572, 577. State v. Kneedy, 232 Iowa 21, 
3 N.W. 2d 611, 615. People v. Stein, 55 Cal.App.2d 
417, 130 P.2d 750, 751 (permitting wife to remain 
in house of prostitution). 

See Abettor; Aid and Abet. 

"Aid" and "abet" are nearly synonymous terms as gen- 
erally used; but, strictly speaking, the former term does 
not imply guilty knowledge or felonious intent, whereas 
the word "abet" includes knowledge of the wrongful pur- 
pose and counsel and encouragement in the commission of 
the crime. Forgery, People v. Dole, 122 Cal. 486, 55 P. 
581, 68 Am. St. Rep. 50; Raiford v. State, 59 Ala. 106; 
Violation of law against free passes, State v. Ankrom, 86 
W.Va. 570, 103 S.E. 925, 927; Crime against nature, State 
v. Start, 65 Or. 178, 132 P. 512, 513; Robbery, People v. 
Powers, 293 111. 600, 127 N.E. 681, 682. 

Instigate synonymous (malicious prosecution) Hughes v. 
Van Bruggen, 44 N.M. 534, 105 P.2d 494, 499. 

"Abet" smacks more of technical terminology than does 
the word "aid", but it is almost synonymous with the 
word "aid". Assault and battery, Gentry v. State, 65 Ga. 
App. 100, 15 S.E. 2d 464, 465. 

ABETTATOR. L. Lat. In old English law. An 
abettor. Fleta, lib. 2, c. 65, § 7. See Abettor. 

ABETTOR. In criminal law. An instigator, or 
setter on; one who promotes or procures a crime 
to be committed. Old Nat. Brev. 21. One who 
commands, advises, instigates, or encourages an- 
other to commit a crime; a person who, being 
present or in the neighborhood, incites another to 
commit a crime, and thus becomes a principal. 
See State v. Baldwin, 193 N.C. 566, 137 S.E. 590, 
591. 

Must have rendered assistance or encouragement to the 
perpetrator of the crime with knowledge of his felonious 
intent; offense of "aiding and abetting" being committed 
by person present who does some act or speaks some word 
aiding the actual perpetrator of the crime. Combs v. 
Commonwealth, 224 Ky. 653, 6 S.W.2d 1082, 1083. Must 



ABETTOR 


aid or commit some overt act or act of encouragement. 
Long v. Commonwealth, 288 Ky. 83, 155 S.W.2d 246, 247. 
One who so far participates in the commission of the 
offense as to be present for the purpose of assisting if 
necessary. State v. Epps, 213 N.C. 709, 197 S.E. 580, 583. 

The distinction between abettors and accessories is the 
presence or absence at the commission of the crime. 
Cowell; Fleta, lib. 1, c. 34. Presence and participation are 
necessary to constitute a person an abettor. 4 Sharsw.Bla. 
Comm. 33; Bradley v. Commonwealth, 201 Ky. 413, 257 S. 
W. 11, 13. Common design to take life not necessary. 
State v. Lord, 42 N.M. 638, 84 P.2d 80, 86. Not essential 
that there should be a prearrangement or mutual under- 
standing or concert of action. McKinney v. • Common- 
wealth, 284 Ky. 16, 143 S.W.2d 745, 747, 748. 

ABEYANCE. In the law of estates. In expecta- 
tion, remembrance, and contemplation of law; 
the condition of a freehold when there is no per- 
son in being in whom it is vested. 

In such cases the freehold has been said to be in nubibus 
(in the clouds), McKown v. McKown, 93 W.Va. 689, 117 
S.E. 557, 559; in pendenti (in suspension) ; and in gremio 
legis (in the bosom of the law) . Where there is a tenant 
of the freehold, the remainder or reversion in fee may 
exist for a time without any particular owner, in which 
case it is said to be in abeyance; Lyle v. Richards, 9 S. 
& R. Pa. 367; 3 Plowd. 29 a, b, 35 a; 1 Washb.R.P. 47. 

Franchise of a corporation; Trustees of Dartmouth 
College v. Woodward, 4 Wheat. (U. S.) 691, 4 L.Ed. 629. 
Personal property as in case of a vessel captured at sea 
from its captors until it becomes invested with the char- 
acter of a prize; 1 Kent, 102; 1 C.Rob.Adm. 139; 3 id. 
97, n.; or the rights of property of a bankrupt, pending 
adjudication; Bank v. Sherman, 101 U.S. 403, 25 L.Ed. 
866 . 

A condition of being undetermined. Fenn v. American 
Rattan & Reed Mfg. Co., 75 Ind. App. 146, 130 N.E. 129, 130. 
(Seller stating its inability to promise to deliver.) 

Sales to third parties, of property acquired by county at 
tax sale, being held in "abeyance", means that certain 
rights or conditions are in expectancy. Willard v. Ward 
County, 72 N.D. 291, 6 N.W.2d 566, 568. 

ABIATICUS, or AVIATICUS. L. Lat. In feudal 
law. A son's son; a grandson in the male line. 
Du Cange, Avius; Spelman; Lib. Feud., Baraterii, 
tit. 8, cited Id. 

ABIDE. To accept the consequences of ; to rest 
satisfied with; to wait for. 

With reference to an order, judgment, or decree of a 
court, to perform, to execute. Jackson v. State, 30 Kan. 
88, 1 P. 317. Where a statute provides for a recognizance 
"to abide the judgment of the court," one conditioned "to 
await the action of the court" is not sufficient; Wilson v. 
State, 7 Tex. App. 38. Defendant does not "abide the 
judgment" until costs of appeal are paid. Ex parte Til- 
lery, 22 Ala.App. 193, 1 14 So. 15. And see State v. Greg- 
ory, 205 Iowa, 707, 216 N.W. 17, 19. 

Defendant's presence in courtroom not a compliance 
with supersedeas bond conditioned to "abide final judg- 
ment," where there was no formal offer to surrender 
defendant into court's custody. American Surety Co. of 
New York v. State, 50 Ga.App. 777, 179 S.E. 407. 

To abide and satisfy is used to express the execution or 
performance of a judgment or order by carrying it into 
complete effect, Erickson v. Elder, 34 Minn. 371, 25 N.W. 
804, Cf. Woolfolk v. Jones, D.C.Va., 216 F. 807, 809. 

Where costs are to abide final result, "abide" is synon- 
ymous with conform to. Getz v. Johnston, 145 Md. 426, 125 
A. 689, 691. 

To abide order respecting seized property, means to per- 
form, obey, conform to. Cantor v. Sachs, 18 Del.Ch. 359, 
162 A. 73, 84. 

ABIDING BY. In Scotch law. A judicial declara- 
tion that the party abides by the deed on which 


he founds, in an action where the deed or writing 
is attacked as forged. Pat. Comp.. It has the ef- 
fect of pledging the party to stand the conse- 
quences of founding on a forged deed. Bell. 

"Abide by" means to adhere to, to submit to, to 
obey, to accept the consequences of. Detroit 
Fidelity & Surety Co. v. U. .S., C.C.A.Ohio, 36 F.2d 
682, 683. (Recognizance) 

To abide by an award means to await the award with- 
out revoking the submission. It does not mean to "acqui- 
esce in" or "not dispute," in the sense of not being at 
liberty to contest the validity of the award when made, 
Hunt v. Wilson, 6 N.H. 36; Quimby v. Melvin, 35 N.H. 
198; Weeks v. Trask, 81 Me. 127, 16 A. 413, 2 L.R.A. 532. 

ABIDING CONVICTION. A definite conviction of 
guilt derived from a thorough examination of the 
whole case. Hopt v. Utah, 7 S.Ct. 614, 120 U.S. 
439, 30 L.Ed. 708. A settled or fixed conviction. 
Davis v. State, 8 Ala.App. 147, 62 So. 1027, 1033. 
People v. Castro, 68 Cal. App. 2d 491, 157 P.2d 25, 
30. 

ABIDING FAITH. Belief or confidence in the 
guilt of one accused of crime which remains or 
continues in the minds of the jury. Gray v. State. 
56 Okl.Cr. 208, 38 P.2d 967, 970. 

ABIGEATORES. See Abigeus. 

ABIGEATUS. Lat. In the civil law. The offense 
of stealing or driving away cattle. See Abigeus. 

ABIGEI. See Abigeus. 

ABIGERE. Lat. In the civil law. To drive away. 
Applied to those who drove away animals with 
the intention of stealing them. Applied, also, to 
the similar offense of cattle stealing on the borders 
between England and Scotland. See Abigeus. 

To drive out; to expel by force; to produce 
abortion. Dig. 47, 11, 4. 

ABIGEUS. Lat. (PI., abigei, or more rarely 
abigeatores.) In the civil law. A stealer of cat- 
tle; one who drove or drew away (subtraxit) 
cattle from their pastures, as horses or oxen from 
the herds, and made booty of them, and who fol- 
lowed this as a business or trade. 

The term was applied also to those who drove away the 
smaller animals, as swine, sheep, and goats. In the latter 
case, it depended on the number taken, whether the 
offender was fur (a common thief) or abigeus. But the 
taking of a single horse or ox seems to have constituted 
the crime of abigeatus. And those who frequently did this 
were clearly abigei, though they took but an animal or 
two at a time. Dig. 47, 14, 3, 2. See Cod. 9, 37; Nov. 22, 
c. 15, § 1; 4 Bl.Comm. 239. 

ABILITY. When the word is used instatutes, it 
is usually construed as referring to pecuniary 
ability, as in the construction of Tenterden's Act 
(q. v.) ; 1 M. &W. 101. 

Contemplates earning capacity as well as property actu- 
ally owned, to support abandoned wife; State v. Witham, 
70 Wis. 473, 35 N.W. 934, Contra, Washburn v. Washburn, 9 
Cal. 475. 

The ability to buy, required in a purchaser as a condi- 
tion to the broker's right to a commission, is the financial 


18 



ABNEPOS 


ability to meet the required terms of the sale, and does 
not mean solvency or ability to respond in damages for a 
breach of the contract. Stewart v. Sisk, 29 Ga.App. 17, 114 
S.E. 71. See Able to Purchase. 

A voter's "ability to read" within meaning of election 
statutes is satisfied if he can read in a reasonably intelli- 
gent manner sentences composed of words in common use 
and of average difficulty, although each word may not be 
always accurately pronounced, and "ability to write" is 
satisfied if he can by use of alphabetical signs express in a 
fairly legible way words of common use and average diffi- 
culty, though each word may not be accurately spelled. 
Williams v. Hays, 175 Ky. 170, 193 S.W. 1046, 1047. But the 
mere ability to write one's name and post office address, 
and nothing more, is insufficient. Murrel v. Allen, 180 Ky. 
604, 203 S.W. 313, 314. 

ABISHERING, or ABISHERSING. Quit of 
amercements. It originally signified a forfeiture 
or amercement, and is more properly mishering, 
mishersing, or miskering, according to Spelman. 
It has since been termed a liberty of freedom, be- 
cause, wherever this word is used in a grant, the 
persons to whom the grant is made have the for- 
feitures and amercements of all others, and are 
themselves free from the control of any within 
their fee. Termes de la Ley, 7. 

ABJUDICATIO. In old English law. The depriv- 
ing of a thing by the judgment of a court; a 
putting out of court; the same as forisjudicatio, 
forjudgment, forjudger. Co.Litt. 100a, b; Townsh. 
PI. 49. A removal from court. Calvinus, Lex. 

Used to indicate an adverse decision in a writ 
of right: Thus, the land is said to be abjudged 
from one of the parties and his heirs. 2 Poll. & 
Maitl. 62. 

ABJURATION. A renunciation or abandonment 
by or upon oath. 

The oath by which any person holding office in England 
was formerly obliged to bind himself not to acknowledge 
any right in the Pretender to the throne of England; 1 
Bla.Com. 368; 13 and 14 W. Ill, c. 6, repealed by 30 and 
31 Vic. c. 59. 

It also denotes an oath abjuring certain doctrines of the 
church of Rome. 

ABJURATION OF ALLEGIANCE. A naturalized 
citizen of the United States, must declare that he 
doth renounce and abjure all allegiance and fideli- 
ty which he owes to any foreign prince, state, etc. 
8 U.S.C.A. § 735. 

ABJURATION OF THE REALM. In ancient 
English law. A renunciation of one's country, a 
species of self-imposed banishment, under an oath 
never to return to the kingdom unless by permis- 
sion. 4 Bl.Comm. 332; Avery v. Everett, 110 N.Y. 
317, 18 N.E. 148, 1 L.R.A. 264. See Abjure. 

ABJURE. To renounce, or abandon, by or upon 
oath. See Abjuration. 

A departure from the state without the intention of 
returning, and not a renunciation of one's country, upon 
an oath of perpetual banishment, as the term originally 
implied. Mead v. Hughes, 15 Ala. 148, 1 Am. Rep. 123. 

ABLE-BODIED. As used in a statute relating to 
service in the militia, this term does not imply an 


absolute freedom from all physical ailment. It 
imports an absence of those palpable and visible 
defects which evidently incapacitate the person 
from performing the ordinary duties of a soldier. 
Darling v. Bowen, 10 Vt. 152. Ability to perform 
ordinary labor is not the test. Town of Marl- 
borough v. Sisson, 26 Conn. 57. 

ABLE SEAMAN. A grade of merchant seamen. 
46 U.S.C.A. § 672. 

ABLE TO EARN. The phrase in the Workmen's 
Compensation Act in reference to wages does not 
mean the maximum sum earned in any one week, 
but a fair average of the weekly wages which an- 
employee is able to earn covering a sufficient 
period of time to determine his earning capacity. 
Reeves v. Dietz, 1 La.App. 501, 505. See also, Mt. 
Olive 8s Staunton Coal Co. v. Industrial Commis- 
sion, 301 111. 521, 134 N.E. 16. Amount one is 
capable of earning if employed. Ferrara v. Clif- 
ton Wright Hat Co., 125 Conn. 140, 3 A.2d 842, 843. 

Ability to obtain and hold employment means that the 
person referred to is either able or unable to perform the 
usual duties of whatever employment may be under con- 
sideration, in the manner that such duties are customarily 
performed by the average person engaged in such employ- 
ment. Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W. 2d 78, 
82. 

ABLE TO PURCHASE "Ability" in sales con- 
tracts, dependent on ability to purchase, usually 
means financial ability. Anderson v. Craig, 111 
Mont. 182, 108 P.2d 205, 206; House v. Hornburg, 
Sup., 39 N.Y.S.2d 20, 22. Purchaser must have 
financial ability and legal capacity to acquire 
land. Campbell v. Hood, Tex.Com.App., 35 S.W. 2d 
93, 95, 85 A.L.R. 266. 

Purchaser is able to purchase, as respects broker's 
right to commission, if he is financially able to command 
the necessary funds to close the deal within the time 
required. Hersh v. Garau, 218 Cal. 460, 23 P.2d 1022. 
Even though part of the money must be obtained on the 
purchased property itself. Pellaton v. Brunski, 69 Cal. 
App. 301, 231 P. 583, 584. But see Bateman v. Richard, 
105 Okl. 272, 232 P. 443, 445; and Reynor v. Mackrill, 181 
Iowa 210, 164 N.W. 335, 1 A.L.R. 523, holding that a 
person, to be able to purchase, must have the money for 
the cash payment, and not merely property on which he 
could raise it. See, also, Peters v. Mullins, 211 Ky. 123, 
277 S.W. 316, 317. See Financially Able. 

ABLEGATI. Papal ambassadors of the second 
rank, who are sent to a country where there is 
not a nuncio, with a less extensive commission 
than that of a nuncio. This title is equivalent to 
envoy. 

ABLOCATIO. A letting out to hire, or leasing for 
money. Calvin. Sometimes used in the English 
form "ablocation." 

ABMATERTERA. Lat. In the civil law. A great- 
great-grandmother's sister, ( abavice soror). Inst. 
3, 6, 6; Dig. 38, 10, 3. Called matertera maxima. 
Id. 38, 10, 10, 17. Called, by Bracton, abmatertera 
magna. Bract, fol. 68b. 

ABNEPOS. Lat. A great-great-grandson. The 
grandson of a grandson or granddaughter. Cal- 
vinus, Lex. 


19 



ABNEPTIS 


ABNEPTIS. Lat. A great-great-granddaughter. 
The granddaughter of a grandson or granddaugh- 
ter. Calvinus, Lex. 

ABODE. One's home; habitation; place of dwell- 
ing; or residence. Ordinarily means "domicile." 
Hanson v. Williams, 170 Ga. 779, 154 S.E. 240, 242. 
Living place impermanent in character. Fowler 
v. Fowler, 156 Fla. 316, 22 So.2d 817, 818. Evans 
v. Evans, 141 Fla. 860, 194 So. 215, 217. The place 
where a person dwells. Dorsey v. Brigham, 177 
111. 250, 52 N.E. 303, In re Erickson, 18 N.J.Misc. 
5, 10 A.2d 142, 146. 

Residence of a legal voter. Fry's Election Case, 71 Pa. 
302, 10 Am. Rep. 698; Dale v. Irwin, 78 111. 181; Pope v. 
Board of Election Com'rs, 370 111. 196, 18 N.E.2d 214, 216. 
Fixed place of residence for the time being. Augustus 
Co, for Use of Bourgeois v. Manzella, 19 N.J.Misc. 29, 17 
A.2d 68, 70; Hudson v. Birmingham Water Works Co., 238 
Ala. 38, 189 So. 72, 73. For service of process, one's fixed 
place of residence for the time being. State ex rel. Mer- 
ritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147; Kurilla v. 
Roth, 132 N.J.L. 213, 38 A.2d 862, 864. 

ABOGADO. Sp. An advocate. See Bozero, 

ABOLISFL To do away with wholly; to annul. 
Webster. To dispense with. Alexander v. City of 
Lampasas, Tex.Civ.App., 275 S.W. 614, 616. Put 
an end to. Stretch v. Murphy, 166 Or. 439, 1 12 P. 
2d 1018, 1021. 

Imports absolute destruction, having its root in the 
Latin word "abolere," meaning to destroy utterly. Applies 
particularly to things of a permanent nature, such as 
institutions, usages, customs, as the abolition of slavery. 
Pondelick v. Passaic County, 111 N.J.Law 187, 168 A. 146, 
147. 

ABOLITION. The destruction, annihilation, abro- 
gation, or extinguishment of anything. Peterson 
v. Pratt, 183 Iowa 462, 167 N.W. 101. Also the 
leave given by the sovereign or judges to a crim- 
inal accuser to desist from further prosecution. 
25 Hen. VIII, c. 21. 

In the Civil, French and German law, abolition is used 
nearly synonymously with pardon, remission, grace. Dig. 
39, 4, 3, 3. There is, however, this difference : grace is 
the generic term; pardon , according to those laws, is the 
clemency which the prince extends to a man who has par- 
ticipated in a crime, without being a principal or accom- 
plice; remission is made in cases of involuntary homicides, 
and self-defence. Abolition is used when the crime can- 
not be remitted. The prince then may, by letters of aboli- 
tion, remit the punishment, but the infamy remains, un- 
less letters of abolition have been obtained before sentence. 
Encycl. de D'Alembert. 

Abolition of position or office, Rexstrew v. City of Hunt- 
ington Park, Cal.App., 120 P.2d 136, 142. Positions of phy- 
sicians and dentists, Lewin v. La Guardia, 22 N.Y.S.2d 409, 
411, 175 Misc. 165. Lay-off of court attendant, Pondelick 
v. Passaic County, 111 N.J.L. 187, 168 A. 146, 147. Trans- 
fer not an abolition of office, Tremp v. Patten, 132 Conn. 
120, 42 A.2d 834, 837. 

ABORDAGE. Fr. In French commercial law. 
Collision of vessels. 

ABORTIFACIENT. In medical jurisprudence. A 
drug or medicine capable of, or used for, produc- 
ing abortion. 

ABORTION. The expulsion of the fcetus at a pe- 
riod of utero-gestation so early that it has not 
acquired the power of sustaining an independent 


life. The unlawful destruction, or the bringing 
forth prematurely, of the human foetus before the 
natural time of birth; State of Magnell, 51 A. 
606, 3 Pennewill (Del.) 307. The act of bringing 
forth what is yet imperfect. Also the thing pre- 
maturely brought forth, or product of an untimely 
process. Sometimes loosely used for the offense 
of procuring a premature delivery; but strictly, 
the early delivering is the abortion; causing or 
procuring abortion is the full name of the offense. 
Wells v. New England Mut. L. Ins. Co., 191 Pa. 
207, 43 A. 126, 53 L.R.A. 327. 

Criminal miscarriage, Commonwealth v. Sierakowski, 
154 Pa. Super. 321, 35 A. 2d 790, 792; Mississippi State 
Board of Health v. Johnson, 197 Miss. 417, 19 So. 2d 445, 
448. "Abortion" and a "miscarriage produced by unlawful 
means" are synonymous, People v. Luckett, 23 Cal.App. 2d 
539, 73 P.2d 658, 659. 

ABORTIONIST. One who criminally produces 
abortions, or one who follows business or prac- 
tices of crime of producing abortions. State v. 
Guaraneri, 59 R.I. 173, 194 A. 589, 592, 593. 

ABORTIVE TRIAL. A term descriptive of the 
result when a case has gone off, and no verdict 
has been pronounced, without the fault, contri- 
vance, or management of the parties. Jebb & B. 
51. 

ABORTUS. Lat. The fruit of an abortion; the 
child born before its time, incapable of life. 

ABOUT. Near in time, quantity, number, quality, 
or degree. Substantially, approximately, almost, 
or nearly. Odom v. Langston, 351 Mo. 609, 173 
S.W. 2d 826, 829. Testimony as to speed, Casto v. 
Hansen, 123 Or. 20, 261 P. 428, 429. Near, period 
of gestation of still born child, Life & Casualty 
Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 
748; Todd v. City of New York, City Ct., N.Y. 23 
N.Y.S.2d 884, 888. Carrying burglar's tools in 
suitcase, Trousdale v. State, 168 Tenn. 210, 76 S.W. 
2d 646, 647. Near the time. State ex rel. Nagle 
v. Leader Co., 97 Mont. 586, 37 P.2d 561, 564. 

When used with reference to time, the term is of flexible 
significance, varying with the circumstances and the con- 
nection in which it is employed. Burlington Grocery Co. 
v. Heaphy's Estate, 98 Vt. 122, 126 A. 525, 528. But its 
use does not necessarily render time immaterial, nor make 
a contract one terminable at will. Costello v. Siems-Carey 
Co., 140 Minn. 208, 167 N.W. 551, 552. In a charter party, 
"about to sail" means just ready to sail. [1893] 2 Q.B. 
274. And when it is said that one is "about" to board a 
street car, it means "in the act of." Fox v. Denver City 
Tramway Co., 57 Colo. 511, 143 P. 278, 280. With relation 
to quantity, the term suggests only an estimate of probable 
amount. Barkemeyer Grain & Seed Co. v. Hannant, 66 
Mont. 120, 213 P. 208, 210. Its import is that the actual 
quantity is a near approximation to that mentioned, and 
it has the effect of providing against accidental varia- 
tions. Norrington v. Wright, 6 S.Ct. 12, 115 U.S. 188, 29 
L. Ed. 366. It may be given practically the same effect as 
the phrase more or less. Pierce v. Miller, 107 Neb. 851, 
187 N.W. 105, 107; Cargo under vessel charter, Steamship 
Co. of 1912 v. C. H. Pearson & Son Hardwood Co., C.C.A. 
N.Y., 30 F.2d 770, 773. Contract for sale of electric energy, 
Merced Irr. Dist. v. San Joaquin Light & Power Corpora- 
tion, 101 Cal.App. 153, 281 P. 415, 417. In a deed covers 
some slight or unimportant inaccuracy. Parrow v. Proulx, 
111 Vt. 274, 15 A. 2d 835, 838. Synonymous with "on" or 
"upon," as in offense of carrying concealed weapons. 
State v. Brunson, 162 La. 902, 111 So. 321, 323; Carriage of 
a pistol or revolver in a grip, satchel, or hand bag held in 


20 



ABSCONDING 


the hand or connected with the person, State v. Blazo- 
vitch, 88 W.Va. 612, 107 S.E. 291, or on the running board 
of an automobile, Armstrong v. State, 98 Tex.Cr.R. 335, 
265 S.W. 701. Paulk v. State, 97 Tex.Cr.R. 415, 261 S. W. 
779, 780. Near by, close at hand, convenient of access. 
Welch v. State, 97 Tex.Cr.R. 617, 262 S.W. 485; Brown v. 
U. S., 30 F.2d 474, 475, 58 App.D.C. 311. Weapon on shelf 
immediately behind defendant, who was seated in coupe 
type automobile. Hampton v. Commonwealth, 257 Ky. 626, 
78 S.W. 2d 748, 750. As to number, it merely implies an 
estimate of a particular lot or class and not a warranty. 
Holland v. Rock, 50 Nev. 340, 259 P. 415. In connection 
with distance or locality, the term is of relative signifi- 
cance, varying with the circumstances. Parker v. Town of 
Pittsfield, 88 Vt. 155, 92 A. 24, 26. Employee on an ele- 
vator is "about the premises". Lienau v. Northwestern 
Telephone Exch. Co., 151 Minn. 258, 186 N.W. 945, 946. 
Workman 200 feet from a factory was "about" the factory. 
Wise v. Central Dairy Co., 121 Kan. 258, 246 P. 501, 503. 
An automobile mechanic injured 17 % blocks from the em- 
ployers' shop while making a road test of an automobile 
is not injured on, in, or about the employers' place of 
business. Iott v. Mosby, 126 Kan. 294, 268 P. 109. "About" 
in lease meaning in other parts of building. William A. 
Doe Co. v. City of Boston, 262 Mass. 458, 160 N.E. 262. 
Estimate of distance, Picharella v. Ovens Transfer Co., 135 
Pa. Super. 112, 5 A. 2d 408, 409. Estimate as to time, char- 
ter of vessel, Britain S. S. Co. v. Munson S. S. Line. D.C. 
N.Y., 25 F.2d 868, 869. Instruction regarding specified 
date, State v. Loahmann, Mo., 58 S.W. 2d 309, 311. Courses 
and distances, Humble Oil & Refining Co. v. Luther, Tex. 
Civ.App., 40 S.W. 2d 865, 867. Pistol under automobile seat. 
Commonwealth v. Nunnelley, 56 S.W. 2d 689, 247 Ky. 109, 
88 A.L.R. 805. 

ABOUTISSEMENT. Fr. An abuttal or abutment. 
See Guyot, Repert. Univ. "Aboutissans." 

ABOVE. Higher; superior. As, court above, plain- 
tiff or defendant above. Above all incumbrances 
means in excess thereof ; Williams v. McDonald, 
42 N.J.Eq. 395, 7 A. 886. Principal; as distin- 
guished from what is auxiliary or instrumental. 
3 Bl.Comm. 291. 

Bail to the action, or special bail, is otherwise termed 
bail above. 3 Bl.Comm. 291. Jurisdiction "above" the ju- 
risdiction of justices of the peace. Synonymous with 
"without." Atlantic Coast Line R. Co. v. Nellwood Lum- 
ber Co., 21 Ga.App. 209, 94 S.E. 86, 87. Above high water 
means above a tide which might reasonably be expected to 
recur with some degree of frequency. Banks v. Wilming- 
ton Terminal Co., Del. Super., 24 A.2d 592, 598, 599, 601, 
602, 2 Terry 489. 

ABOVE CITED, or MENTIONED. Quoted be- 
fore. A figurative expression taken from the 
ancient manner of writing books on scrolls, where 
whatever is mentioned or cited before in the same 
roll must be above. Encyc. Lond. 

ABPATRUUS. Lat. A great-great-uncle; or, a 
great-great-grandfather's brother (a bavi frater). 
Inst. 3, 6, 6; Dig. 38, 10, 3; Du Cange, Patruus. 
Called by Bracton and Fleta, abpatruus magnus. 
Bract, fol. 68b; Fleta, lib. 6, c. 2, § 17. It some- 
times means uncle, and sometimes great-uncle. 

ABRIDGE. To reduce or contract; usually spoken 
of written language. 

Copyright Law 

To epitomize; to reduce; to contract. It im- 
plies preserving the substance, the essence, of a 
work, in language suited to such a purpose. In 
making extracts there is no condensation of the 
author's language, and hence no* abridgment. To 


abridge requires the exercise of the mind; it is 
not copying. Between a compilation and an 
abridgment there is a clear distinction. A compila- 
tion consists of selected extracts from different 
authors; an abridgment is a condensation of the 
views of one author. Story v. Holcombe, 4 Mc- 
Lean, 306, 310, Fed.Cas.No. 13,497. 

Practice 

To shorten a declaration or count by taking 
away or severing some of the substance of it. 
Brooke, Abr., Com., Dig. Abridgment ; 1 Viner, 
Abr. 109. See Abridgment. 

ABRIDGMENT. Condensation; contraction. An 
epitome or compendium of another and larger 
work, wherein the principal ideas of the larger 
work are summarily contained. 

Abridgments of the law are brief digests of the law, 
arranged alphabetically. (1 Steph.Comm. 51.) The term 
"digest" has now supplanted that of "abridgment." 
Sweet. 

ABRIDGMENT OF DAMAGES. The right of the 
court to reduce the damages in certain cases. 
Vide Brooke, tit. "Abridgment." 

ABROAD. In English chancery law, beyond the 
seas. 

ABROGATE. To annul, repeal, or destroy; to 
annul or repeal an order or rule issued by a sub- 
ordinate authority; to repeal a former law by 
legislative act, or by usage. 

ABROGATION. The destruction or annulling of 
a former law, by an act of the legislative power, 
by constitutional authority, or by usage. 

It stands opposed to rogation; and is distinguished from 
derogation, which implies the taking away only some part 
of a. law; from subrogation, which denotes the adding a 
clause to it; from dispensation, which only sets it aside in 
a particular instance; and from antiquation, which is the 
refusing to pass a law. Encyc. Lond. Implied abrogation 
takes place when the new law contains provisions which 
are positively contrary to former laws, without expressly 
abrogating such laws. Bernard v. Vignaud, 10 Mart.O.S. 
La. 560; and also when the order of things for which 
the law has been made no longer exists. See Ex parte 
Lum Poy, D.C., 23 F.2d 690. 

For "Express Abrogation," see that title. 

ABSCOND. To go in a clandestine manner out 
of the jurisdiction of the courts, or to lie con- 
cealed, in order to avoid their process. Malvin .v. 
Christoph, 54 Iowa, 562, 7 N.W. 6. To hide, con- 
ceal, or absent oneself clandestinely, with the in- 
tent to avoid legal process. Smith v. Johnson, 43 
Neb. 754, 62 N.W. 217. Postponing limitations. 
Keck v. Pickens, 207 Ark. 757, 182 S.W.2d 873, 875. 
Fleeing from arresting or prosecuting officers of 
this state. Code Cr.Proc. art. 8. State v. Berry- 
hill, 188 La. 549, 177 So. 663. 

ABSCONDING DEBTOR. One who absconds 
from his creditors. 

An absconding debtor is one who lives without the state, 
or who has intentionally concealed himself from his credi- 
tors, or withdrawn himself from the reach of their suits, 
with intent to frustrate their just demands. Thus, if a 
person departs from his usual residence, or remains absent 
therefrom, or conceals himself in his house, so that he can- 


21 



ABSENCE 


not be served with process, with intent unlawfully to de- 
lay or defraud his creditors, he is an absconding debtor; 
but if he departs from the state or from his usual abode, 
with the intention of again returning, and without any 
fraudulent design, he has not absconded, nor absented 
himself, within the intendment of the law. Doughnut 
Corporation of America v. Tsakirides, 121 N.J.L. 136, 1 
A.2d 467, 469. A party may abscond, and subject himself 
to the operation of the attachment law against absconding 
debtors, without leaving the limits of the state. Field v. 
Adreon, 7 Md. 209. A debtor who is shut up from his 
creditors in his own house is an absconding debtor. Ives 
v. Curtiss, 2 Root (Conn.) 133. Salzman v. Robinson, 10 
N.J.Misc.R. 51, 157 A. 547, 548. 

ABSENCE. The state of being absent, removed, 
or away from one's domicile, or usual place of 
residence. Maley v. Pennsylvania R. Co., 258 Pa. 
73, 101 A. 911. Not present at particular time, op- 
posite of appearance at a specified time. Hamil- 
ton v. Bernstein, 133 Kan. 229, 299 P. 581. 

Absence is of a fivefold kind: (1) A necessary absence, 
as in banished or transported persons ; this is entirely nec- 
essary. (2) Necessary and voluntary, as upon the account 
of the commonwealth, or in the service of the church. (3) 

A probable absence, according to the civilians, as that of 
students on the score of study. (4) Entirely voluntary, on 
account of trade, merchandise, and the like. (5) Absence 
cum dolo et culpd, as not appearing to a writ, subpoena, 
citation, etc., or to delay or defeat creditors, or avoiding 
arrest, either on civil or criminal process. Ayliffe. Non- 
appearance to action, not merely that the party was not 
present in court vacating judgment. Strine v. Kaufman, 
12 Neb. 423, 1 1 N.W. 867. In usual and natural signifi- 
cation, means physical absence. Inhabitants of Lanes- 
borough v. Inhabitants of Ludlow, 250 Mass. 99, 145 N.E. 
57, 58. Nonpresence, of official for service. Kurre v. 
American Indemnity Co. of Galveston, Tex., 223 Mo.App. 
406, 17 S.W.2d 685, 688. 

Presumption of Death Created 

Intent to establish home at place last heard 
from not required. American Nat. Ins. Co. v. 
Garcia, Tex.Civ.App., 46 S.W.2d 1011, 1012. Away 
from a place to which one is expected to return. 
Woodmen of the World Life Ins. Soc. v. Cooper, 
Tex.Civ.App., 164 S.W.2d 729, 731. 

In Scotch Law, want or default of appearance. A* decree 
is said to be in absence where the defender (defendant) 
does not appear. Ersk. Inst. bk. 4, tit. 3, § 6. 

ABSENT. Being away from; at a distance from; 
not in company with. 

Paine v. Drew, 44 N.H. 306, where it was held that the 
word when used as an adjective referred only to the con- 
dition or situation of the person or thing spoken of at 
the time of speaking without reference to any prior con- 
dition or situation of the same person or thing, but when 
used as a verb implies prior presence. It has also been 
held to mean "not being in a particular place at the time 
referred to," and not to import prior presence. The term 
absent defendants does not embrace non-resident defend- 
ants but has reference to parties resident in the state, but 
temporarily absent therefrom. Wheeler v. Wheeler, 35 111. 
App. 123. See, however, Selmer v. James Dickinson Farm 
Mortg. Co., D.C.I1 1., 299 F. 651, 658, holding that a foreign 
corporation is "absent" from the state, and limitation does 
not run in its favor. Commonwealth's attorney is "absent" 
when disqualified or disabled from performing functions 
of office. Northcutt u. Howard, 279 Ky. 219, 130 S.W.2d 
70, 71, 72. A judge, disqualified to act. Dark Tobacco 
Growers' Co-op. Ass’n v. Wilson, 206 Ky. 550, 267 S.W. 
1092, 1093. A deceased stockholder employee is not "ab- 
sent" from duty, as respects sharing of profits, etc. Nich- 
ols v. Olympia Veneer Co., 135 Wash. 8, 236 P. 794, 796. 
Nonresident with office in state is not absent from state. 
Corash v. Texas Co., 35 N.Y.S.2d 334, 340, 264 App.Div. 292. 

As a verb, "absent" means to take or withdraw to such 
a distance as to prevent intercourse; to depart from. 
People v. Day, 321 111. 552, 152 N.E. 495, 497. 


ABSENT-MINDEDNESS. A state of mind in 
which the person affected fails to respond to the 
ordinary demands on his attention. Webster. See 
Racine Tire Co. v. Grady, 205 Ala. 423, 88 So. 337. 

ABSENTE, Lat. Being absent; often used in the 
old reports of one of the judges not present at the 
hearing of a cause. 2 Mod. 14. Absente Reo, 
The defendant being absent. 

ABSENTEE. One who dwells abroad; a land- 
lord who resides in a country other than that 
from which he draws his rents. McCul. Pol. 
Econ.; 33 Brit. Quar. Rev. 455. One who is ab- 
sent from his usual place of residence or domicile. 

Foreign corporations, not filing declarations of domicile 
and names of agents. Palmer v. Avalon Oil Co., 10 La. 
App. 512, 120 So. 781, 782. In Louisiana law, one who has 
left his residence in a state leaving no one to represent 
him. Bartlett v. Wheeler, 31 La. Ann. 540; or who resides 
in another state but has property in Louisiana. Penn v. 
Evans, 28 La. Ann. 576. It has been also defined as one 
who has never been domiciled in the state and -who resides 
abroad. Morris v. Bienvenu, 30 La.Ann. 878. One person 
cannot be both,' at the same time, in the meaning of 1 he 
law, a resident and an absentee. Spence v. Spence, 105 
So. 23, 29, 158 La. 961. 

ABSENTEES, or DES ABSENTEES. A parlia- 
ment so called was held at Dublin, 10th May, 8 
Hen. VIII. It is mentioned in letters patent 29 
Hen. VIII. 

ABSENTEM ACCIPERE DEBEMUS EUM QUI 
NON EST EO LOCI IN QUO PETITUR. We 
ought to consider him absent who is not in the 
place where he is demanded (or sought). Dig. 
50, 16, 199. 

ABSENTIA EJUS QUI REIPUBLIC1E CAUSA 
ABEST, NEQUE El NEQUE ALII DAMNOSA 
ESSE DEBET. The absence of him who is away 
in behalf of the republic (on business of the state) 
ought not to be prejudicial either to him or to an- 
other. Dig. 50, 17, 140. 

ABSOILE, ASSOIL, ASSOILE. To pardon; to 
deliver from excommunication. Staunford, Pl.Cr. 
72; Kelham; Cowell. 

ABSOLUTA SENTENTIA EXPOSITORS NON 
INDIGET. An absolute sentence or proposition 
(one that is plain without any scruple, or absolute 
without any saving) needs not an expositor. 2 
Inst. 533. 

ABSOLUTE. Complete; perfect; final; without 
any condition or incumbrance; as an absolute 
bond (simplex obligaiio) in distinction from a con- 
ditional bond. Unconditional; complete and per- 
fect in itself ; without relation to or dependence 
on other things or persons. Instruction as to an 
"absolute" gift, Ketch v. Smith, 131 Okl. 263, 268 
P. 715, 717. Irrevocable, final. Gift inter vivos 
by husband, President and Directors of Manhat- 
tan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc. 
290. Within limitation or restriction, Comford v. 
Cantrell, 177Tenn. 553, 151 S.W.2d 1076, 1077. 


22 



An absolute estate is one that is free from all manner of 
condition or incumbrance; an estate in fee simple. John- 
son v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Miss- 
roon, 35 S.C. 31.4, 14 S.E. 714; Bradford v. Martin, 199 
Iowa 250, 201 N.W. 574, 576; Middleton v. Dudding, Mo. 
Sup., 183 S.W. 443, 444.- A rule is said to be absolute when 
on the hearing it is confirmed and made final. A convey- 
ance is said to be absolute, as distinguished from a mort- 
gage or other conditional conveyance. Gogarn v. Connors. 
153 N.W. 1068, 188 Mich. 161. Absolute property is where 
a man hath solely and exclusively the right and also the 
occupation of movable chattels ; distinguished from a quali- 
fied property, as that of a bailee. 2 Kent 347. An absolute 
owner is one in whom elements of titles of possession, 
right of possession, and right of property, are combined. 
Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262 
P. 243, 244. Absolute ownership exists when interest is 
so completely vested in insured that he cannot be deprived 
of it without his own consent. Norwich Union Fire Ins. 
Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223, 224. Absolute 
rights are such as appertain and belong to particular per- 
sons merely as individuals or single persons, as distin- 
guished from relative rights, which are incident to them as 
members of society; 1 Sharsw.Bla.Com. 123; 1 Chit.Pr. 
32. An absolute duty is one that is free from every restric- 
tion; unconditional; determined; not merely provisional; 
irrevocable. Broken telephone wires. Home Telephone 
Co. v. Weir, 101 N.E.1020, 1021, 53 Ind. App. 466; Railroad 
employee, Lehigh Valley R. Co. v. Beltz, C.C.A.N.Y., 10 
F.2d 74, 77; Pedestrians, Scibilia v. City of Philadelphia, 
279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute 
power of disposition," in the absence of statute, would be 
one by which the holder of the power might dispose of the 
property as fully and in the same manner as he might dis- 
pose of his individual estate acquired by his own efforts. 
In re Briggs' Will, 167 N.Y.S. 632, 635, 101 Misc. 191. In the 
law of insurance that is an absolute interest in property 
which is so completely vested in the individual that there 
could be no danger of his being deprived of it without his 
own consent. Libby Lumber Co. v. Pacific States Fire Ins. 
Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be 
used in the sense of vested. Hough v. Ins. Co., 29 Conn. 
20, 76 Am. Dec. 581. "Absolute control" in Motor Vehicle 
Act does not require instant stoppage. Goff v. Clarksburg 
Dairy Co., 86 W.Va. 237, 103 S.E. 58, 60. As to absolute 
control of a mine, see People v. Boggess, 75 Cal. App. 499, 
243 P. 478, 481; and of an estate, see Strickland v. Strick- 
land, 271 111. 614, 111 N.E. 592, 594. Absolute veto is equiv- 
alent to "pocket veto". Okanogan, Methow, San Poelis 
(or San Poil), Nespelem, Colville, and Lake Indian Tribes 
or Bands of State of Washington v. United States, 49 S.Ct. 
463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434. 

As to absolute "Conveyance," "Covenant," "Delivery," 
"Divorce," "Estate," "Gift," "Guaranty," "Interest," 
"Legacy," "Nuisance," "Nullity," "Obligation," "Proper- 
ty," "Rights," "Rule," "Sale," "Title," "Warrandice," 
see those titles. 

ABSOLUTE LAW. The true and proper law of 
nature, immutable in the abstract or in principle, 
in theory, but not in application; for very often 
the object, the reason, situation, and other cir- 
cumstances, may vary its exercise and obligation. 
1 Steph.Comm. 21 et seq. 

ABSOLUTELY. Completely; wholly; without 
qualification; without reference or relation to, or 
dependence upon, any other person, thing, or 
event. Thus, absolutely void means utterly void; 
Pearsoll v. Chapin, 44 Pa. 9. Absolutely neces- 
sary may be used to make the idea of necessity 
more emphatic; State v. Tetrick, 34 W.Va. 137, 11 
S.E. 1002. An "absolutely necessary repair," with- 
in terms of Wisconsin St. 1925, § 85.02, prohibit- 
ing parking of vehicles except for making abso- 
lutely necessary repairs, includes repair of a 
punctured tire. Long v. Steffen, 194 Wis. 179, 
215 N.W. 892, 893, 61 A.L.R. 1155. Independently 
or unconditionally, wholly or positively. Collins 


ABSQUE 

v. Hartford Accident & Indemnity Co., 178 Va. 
501, 17 S.E.2d 413, 418. 

"Absolutely void" is that which the law or nature of 
things forbids to be enforced at all, and that is "relatively 
void" which the law condemns as a wrong to individuals 
and refuses to enforce against them. Kyle v. Chaves, 42 
N.Mex. 21, 74 P.2d 1030; Scudder v. Hart, 45 N.M. 76, 110 
P.2d 536, 541. 

A devise of property to have "absolutely" means without 
condition, exception, restriction, qualification or limitation, 
In re Darr's Estate, 206 N.W. 2, 3, 1 14 Neb. 1 16, and cre- 
ates a fee-simple estate. In re Reynold's Estate, 94 Vt. 149, 
109 A. 60, 63. 

ABSOLUTION. In Canon Law, a juridical act 
whereby the clergy declare that the sins of such 
as are penitent are remitted. Among Protes- 
tants it is chiefly used for a sentence by which a 
person who stands excommunicated is released or 
freed from that punishment. Encyc. Brit. 

In the Civil Law a sentence whereby a party 
accused is declared innocent of the crime laid to 
his charge. 

In French Law, the dismissal of an accusa- 
tion. 

The term acquitment is employed when the accused is 
declared not guilty, and absolution when he is recognized 
as guilty but the act is not punishable by law or he is 
exonerated by some defect of intention or will. Merlin, 
Report. 

ABSOLUTISM. In politics. A system of gov- 
ernment in which public power is vested in some 
person or persons, unchecked and uncontrolled 
by any law, institution, constitutional device, or 
coordinate body. 

ABSOLVE. To set free, or release, as from obli- 
gation, debt, or responsibility. State ex rel. St. 
Louis Car Co. v. Hughes, 348 Mo. 125, 152 S'.W.2d 
193,194. 

ABSOLVITOR. In Scotch law. An acquittal; a 
decree in favor of the defender in any action. 

ABSQUE. Without. Occurs in phrases taken 
from the Latin; such as those immediately fol- 
lowing. 

ABSQUE ALIQUO INDE REDENDO. Lat. With- 
out reserving any rent therefrom; without ren- 
dering anything therefrom. A term used of a 
free grant by the crown. 2 Rolle, Abr. 502. 

ABSQUE CONSIDERATIONE CURVE. In old 
practice. Without the consideration of the court; 
without judgment. Fleta, lib. 2, c. 47, § 13. 

ABSQUE HOC. Without this. These are techni- 
cal words of denial, used in pleading at common 
law by way of special traverse, to introduce the 
negative part of the plea, following the affirma- 
tive part or inducement. Martin v. Hammon, 8 
Pa. 270. See, also, Traverse. 

ABSQUE I l%IPETITIONE VASTI. Without im- 
peachment of waste; without accountability for 
waste; without liability to suit for waste. A 
clause anciently often inserted in leases (as the 


23 



ABSQUE 


equivalent English phrase sometimes is) signify- 
ing that the tenant or lessee shall not be liable to 
suit (impetitio) or challenged, or called to ac- 
count, for committing waste. Co. Litt. 220a; 
Litt. § 352. See Waste. 

ABSQUE TALI CAUSA. Lat. Without such 
cause. A form of replication, now obsolete, in 
an action ex delicto which works a general de- 
nial of the whole matter of the defendant's plea 
of de injuria. Gould, PL c. 7, § 10; Steph. PL 191. 

ABSTENTION. In French law. Keeping an 
heir from possession; also tacit renunciation of 
a succession by an heir. Merl. Repert. 

ABSTRACT, n. A less quantity containing the 
virtue and force of a greater quantity; an 
abridgment. Miller v. Kansas City Light 8s Pow- 
er Co., C.C.A.Mo., 13 F.2d 723. A transcript is 
generally defined as a copy, and is more compre- 
hensive than an abstract. Harrison- v. Mfg. Co., 
10 S.C. 278, 283. Summary or epitome, or that 
which comprises or concentrates in itself the es- 
sential qualities of a larger thing or of several 
things. Robbins Inv. Co. v. Robbins, 49 Cal.App. 
2d 446, 122 P.2d 91, 92. 

ABSTRACT, v. To take or withdraw from; as, 
tO abstract the funds of a bank. Sprague v. 
State, 188 Wis. 432, 206 N.W. 69, 70. 

ABSTRACT OF A FINE. In old conveyancing. 
One of the parts of a fine, being an abstract of 
the writ of covenant, and the concord, naming the 
parties, the parcels of land, and the agreement. 
2 Bl.Comm. 351. More commonly called the 
"note" of the fine. See Fine; Concord. 

ABSTRACT OF RECORD. A complete history in 
short, abbreviated form of the case as found in 
the record, complete enough to show that the 
questions presented for review have been properly 
reserved. State ex rel. Wallace State Bank v. 
Trimble, 308 Mo. 278, 272 S.W. 72, 73. Synopsis 
or summary of facts, rather than table of con- 
tents of transcript. Wing v. Brasher, 59 Mont. 
10, 194 P. 1106, 1108. Abbreviated accurate and 
authentic history of proceedings. Brown v. Reich- 
mann, 237 Mo.App. 136, 164 S.W.2d 201, 207. 

ABSTRACT OF TITLE. A condensed history of 
the title to land, consisting of a synopsis or sum- 
mary of the material or operative portion of all 
the conveyances, of whatever kind or nature, 
which in any manner affect said land, or any 
estate or interest therein, together with _a state- 
ment of all liens, charges, or liabilities to which 
the same may be subject, and of which it is in any 
way material for purchasers to be apprised. 
War y . Abst. § 2. Stevenson v. Polk, 71 Iowa, 278, 
32 N.W. 340. 

Record title, not extrinsic evidence thereof. Upton v. 
Smith, 166 N.W. 268, 183 Iowa 588. Showing a marketable 
title. Morgan v. W. A. Howard Realty Co., 68 Colo. 414, 
191 P. 1 14, 1 15. An epitome of the record evidence of title. 
De Huy v. Osborne, 96 Fla. 435, 118 So. 161, 162. Including 
maps, plats, and other aids. Commissioners' Court of 
Madison County v. Wallace, 118 Tex. 279, 15 S.W. 2d 535, 
536. An epitome of the conveyances, transfers, and other 


facts relied on as evidence of title, together with all such 
facts appearing of record as may impair the title. State 
ex rel. Freeman v. Abstracters Board of Examiners, 99 
Mont. 564, 45 P.2d 668, 670. Vangsness v. Bovill, 58 S.D. 
228, 235 N.W. 601, 604. Memorandum or concise statement 
in orderly form of the substance of documents or facts 
appearing on public records which affect title to real 
property. State ex rel. Doria v. Ferguson, 145 Ohio St. 12, 
60 N.E.2d 476, 478. 

ABSTRACT (QUESTION. One which does not 
rest upon existing facts or rights. Morris Plan 
Bank of Fort Worth v. Ogden, Tex.Civ.App., 144 
S.W. 2d 998, 1004. 

ABSTRACTION. Taking from with intent to in- 
jure or defraud, "wrongful abstraction" is "unau- 
thorized and illegal taking or withdrawing of 
funds, etc. , and appropriation thereof to taker's 
benefit." Pacific Coast Adjustment Bureau v. 
Indemnity Ins. Co. of North America, 115 Cal. 
App. 583, 2 P.2d 218, 219. 

For benefit of taker or of another with his consent. 
Austin v. Nieman, Tex.Civ.App., 3 S.W. 2d 128, 129. Of- 
fense for bank officer, popular sense of word. Common- 
wealth v. Dauphinee, 121 Pa.Super. 565, 183 A. 807, 813. 
Under the National Bank Act, not necessarily the same as 
embezzlement, larceny, or misapplication of funds. Fer- 
guson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271, 273. State 
v. Hudson, 93 W.Va. 435, 117 S.E. 122, 126. 

ABSURDITY. That which is both physically and 
morally impossible; and that is to be regarded as 
morally impossible which is contrary to reason, 
so that it could not be imputed to a man in his 
right senses. State v. Hayes, 81 Mo. 574, 585. 
Anything which is so irrational, unnatural, or in- 
convenient that it cannot be supposed to have 
been within the intention of men of ordinary in- 
telligence and discretion. Black, Interp. Laws, 
104; Graves v. Scales, 172 N.C. 915, 90 S.E. 439; 
obviously and flatly opposed to the manifest 
truth; inconsistent with the plain dictates of 
common sense; logically contradictory; nonsen- 
sical; ridiculous. Wade v. Empire Dist. Electric 
Co., 98 Kan. 366, 158 P. 28, 30. 

ABUNDANS CAUTELA NON NOCET. Abun- 
dant or extreme caution does no harm. 1 1 Co. 6; 
Fleta, lib. 1, c. 28, § 1; 6 Wheat. 108. This princi- 
ple is generally applied to the construction of 
instruments in which superfluous words have been 
inserted more clearly to express the intention. 

ABUS DE CONFIANCE. Fraudulently misusing 
or spending to anybody's prejudice goods, cash, 
bills, documents, or contracts handed over for a 
special object. The Washington, D.C.N.Y., 19 F. 
Supp. 719, 722. 

ABUSE, n. Everything which is contrary to good 
order established by usage. Merl. Repent. De- 
parture from use; immoderate or improper use. 

Action that would be necessary in ordinary affairs to, 
make one guilty of an "abuse" connotes conduct of a dif- 
ferent grade than what is meant when a court is said to 
have "abused its discretion." Beck v. Wings Field, Inc. 
C.C.A.Pa., 122 F.2d 114, 116. 

Civil Law 

The destruction of the substance of a thing in 
using it. See Abuse, v. 


24 



ABUT 


Corporate Franchise or Entity 

The abuse or misuse of its franchises by a cor- 
poration signifies any positive act in violation of 
the charter and in derogation of public right, 
willfully done or caused to be done; the use of 
rights or franchises as a pretext for wrongs and 
injuries to the public. People v. Atlantic Ave. R. 
Co., 125 N.Y. 513, 26 N.E. 622. 

Discretion 

"Abuse of discretion" is synonymous with a fail- 
ure to exercise a sound, reasonable, and legal dis- 
cretion. Disbarment, Adair v. Pennewill, 153 A. 
859, 860, 4 W.W. Harr. (Del.) 390. It is a strict 
legal term indicating that appellate court is 
simply of opinion that there was commission of 
an error of law in the circumstances. Refusing 
motion to amend pleadings, Tunstall v. Lerner 
Shops, 160 S.C. 557, 159 S.E. 386. Motions to con- 
solidate actions, Bishop v. Bishop, 164 S.C. 493, 
162 S.E. 756, 757. Vacating judgment, Detroit Fi- 
delity & Surety Co. v. Foster, 171 S.C. 121, 169 
S.E. 871, 881. And it does not imply intentional 
wrong or bad faith, or misconduct, nor any reflec- 
tion on the judge but means the clearly erroneous 
conclusion and judgment — one is that clearly 
against logic and effect of such facts as are pre- 
sented in support of the application or against 
the reasonable and probable deductions to be 
drawn from the facts disclosed upon the hearing; 
an improvident exercise of discretion; an error of 
law. New trial, State v. Draper, 83 Utah, 115, 27 
P.2d 39. Setting aside of decree pro confesso. Ex 
parte Jones, 246 Ala. 433, 20 So. 2d 859, 862. 

A discretion exercised to an end or purpose not justified 
by and clearly against reason and evidence. Trimmer v. 
State, 142 Okl. 278, 286 P. 783, 786; Seaba v. State, 290 P. 
1098, 1101, 144 Okl. 295. Unreasonable departure from 
considered precedents and settled judicial custom, con- 
stituting error of law. Beck v. Wings Field, Inc., C.C.A. 
Pa., 122 F.2d 1 14, 116, 117. The term is commonly em- 
ployed to justify an interference by a higher court with the 
exercise of discretionary power by a lower court and is 
said by some authorities to imply not merely error of 
judgment, but perversity of will, passion, prejudice, par- 
tiality, or moral delinquency. The exercise of an honest 
judgment, however erroneous it may appear to be, is not 
an abuse of discretion. Stroup v. Raymond, 183 Pa. 279, 38 
A. 626. Where a court does not exercise a discretion in the 
sense of being discreet, circumspect, prudent, and exercis- 
ing cautious judgment, it is an abuse of discretion. State 
Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 
563, 565. Difference injudicial opinion is not synonymous 
with "abuse of judicial discretion" as respects setting aside 
verdict as against evidence. Belock v. State Mut. Fire Ins. 
Co., 106 Vt. 435, 175 A. .19, 22. 

Distress 

The using an animal or chattel distrained, 
which makes the distrainer liable as for a con- 
version. 

Female Child 

An injury to the genital organs in an attempt at 
carnal knowledge, falling short of actual penetra- 
tion. Lee v. State, 246 Ala. 69, 18 So.2d 706, 707. 
But, according to other authorities, "abuse" is 
here equivalent to ravishment or rape. Palin v. 
State, 38 Neb. 862, 57 N.W. 743. Physical abuse. 
Montgomery v. State, 28 Ala.App. 442, 186 So. 
589, 592. 


Process 

There is said to be an abuse of process when 
an adversary, through the malicious and unfound- 
ed use of some regular legal proceeding, obtains 
some advantage over his opponent. Wharton. 
Employment of process for doing an act clearly 
outside authority conveyed by express terms of 
writ. Shane v. Gulf Refining Co., 114 Pa. Super. 
87, 173 A. 738, 740. 

The gist of an action for "abuse of process" is improper 
use or perversion of process after it has been issued. 
Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 
A. 2d 413, 415. Holding of accused incommunicado before 
complying with warrant requiring accused to be taken 
before magistrate. People v. Crabb, 372 111. 347, 24 N.E. 2d 
46, 49. Warrant of arrest to coerce debtor. In re Wil- 
liams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105. A mali- 
cious abuse of legal process occurs where the party em- 
ploys it for some unlawful object, not the purpose which 
it is intended by the law to effect; in other words, a 
perversion of it. Lauzon v. Charroux, 18 R.I. 467, 28 A. 
975. Vybiral v. Schildhauer, 265 N.W. 241, 244, 130 Neb. 
433; Silverman v. Ufa Eastern Division Distribution, 236 
N.Y.S. 18, 20, 135 Misc. 814. Thus, where the purpose of 
a prosecution for issuance of a check without funds was 
to collect a debt, the prosecution constituted an abuse of 
criminal process. Hotel Supply Co. v. Reid, 16 Ala.App. 
563, 80 So. 137, 138. Regular and legitimate use of process, 
although with a bad intention, is not a malicious "abuse 
of process." Priest v. Union Agency, 174 Tenn. 304, 125 S. 
W.2d 142, 143. Action for "abuse of process" is distin- 
guished from action for "malicious prosecution," in that 
action for abuse of process rests upon improper use of reg- 
ularly issued process, while "malicious prosecution" has 
reference to wrong in issuance of process. Clikos v. Long, 
231 Ala. 424, 165 So. 394, 396; Mclnnis v. Atlantic Inv. Cor- 
poration, 137 Or. 648, 4 P.2d 314, 315; Lobel v. Trade Bank 
of New York, 229 N.Y.S. 778, 781, 132 Misc. 643. 

ABUSE, v. To make excessive or improper use 
of a thing, or to employ it in a manner contrary 
to the natural or legal rules for its use; to make 
an extravagant or excessive use, as to abuse one's 
authority. 

In the civil law, the borrower of a chattel which, in its 
nature, cannot be used without consuming it. such as wine 
or grain, is said to abuse the thing borrowed if he uses it. 
It has been held to include misuse; Erie & North-East R. 
Co. v. Casey, 26 Pa. 287; to signify to injure, diminish in 
value, or wear away by improper use; id.; to be synon- 
ymous with injure; Dawkins v. State, 58 Ala. 376, 29 Am. 
Rep. 754. 

ABUSIVE. Tending to deceive; practicing abuse; 
prone to ill treat by coarse, insulting words. U. 
S. v. Ault, D.C.Wash., 263 F. 800, 810. Using 
ill treatment, injurious, improper, hurtful, offen- 
sive, reproachful. People on Complaint of Wil- 
son v. Sinclair, 149 N.Y.S. 54, 56, 86 Misc. 426. 

ABUT. To reach, to touch. In old law, the ends 
were said to abut, the sides to adjoin. Cro. Jac. 
184. And see Lawrence v. Killam, 1 1 Kan. 499, 
511; Springfield v. Green, 120 111. 269, 11 N.E. 
261 . To take a new direction; as where a bound- 
ing line changes its course. Spelman, Gloss. 
Abuttare. To touch at the end; be contiguous; 
join at a border or boundary; terminate; to end 
at; to border on; to reach or touch with an end. 
Assessment of property, Hensler v. City of Ana- 
cortes, 140 Wash. 184, 248 P. 406, 407. The term 
"abutting" implies a closer proximity than the 
term "adjacent." Reversion of vacated park land, 


25 



ABUT 


City of Hutchinson v. Danley, 88 Kan. 437, 129 
P. 163, 164. "Contiguous" synonymous, both con- 
veying idea that lot borders on improvement. 
Reynard v. City of Caldwell, 55 Idaho 342, 42 
P.2d 292, 296. 

No intervening land. Johnson v. Town of Watertown, 
131 Conn. 84, 38 A. 2d 1, 4. Property at end of street sought 
to be vacated. Messinger v. City of Cincinnati, 36 Ohio 
App. 337, 173 N.E. 260, 262. Widen street, leaving ftee 
access to paved street, property within assessment stat- 
utes. Goodman v. City of Birmingham, 223 Ala. 199, 135 
So. 336, 337. Though the usual meaning of the word is 
that the things spoken of do actually adjoin, "bounding 
and abutting" have nc, such inflexible meaning as to re- 
quire lots assessed actually to touch the improvement; 
Cohen v. Cleveland, 43 Ohio St. 190, 1 N.E. 589. 

ABUTMENTS. The walls of a bridge adjoining 
the land which support the end of the roadway 
and sustain the arches. The ends of a bridge, 
or those parts of it which touch the land. Board 
of Chosen Freeholders of Sussex County v. Stra- 
der, 18 N.J.Law, 108, 35 Am. Dec. 530. Support at 
either extreme end. City of New York v. New 
York Cent. R. Co., 48 N.Y.S.2d 189, 191, 183 Misc. 
104. 

ABUTTALS. Fr. The buttings or boundings of 
lands, showing to what other lands, highways, 
or places they belong or are abutting. Termes 
de la Ley; Cowell; Toml. It has been used to 
express the end boundary lines as distinguished 
from those on the sides, as "buttais and sidings"; 
Cro.Jac. 183. 

ABUTTER. One whose property abuts, is contigu- 
ous, or joins at a border or boundary, as where 
no other land, road, or street intervenes. 

ABUTTING OWNER. An owner of land which 
abuts or adjoins. The term usually implies that 
the relative parts actually adjoin, but is some- 
times loosely used without implying more than 
close proximity. See Abut. 

Where five-foot strip between property assessed for pav- 
ing and street was conveyed to city but not used for street 
purposes, property assessed held not "abutting property," 
Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234, 237. 
Property owners held "abutting property owners," sub- 
ject to sewer assessment, notwithstanding street was wid- 
ened from 40 to 50 feet when incorporated in state high- 
way, and city bought the extra 5 feet on either side. Ca- 
rey-Reed Co. v. Sisco, 251 Ky. 22, 64 S.W.2d 430, 433. Rail- 
road in street was not "abutting owner". Town of 
Lenoir v. Carolina & N. W. Ry. Co., 194 N.C. 710, 140 S.E. 
618, 619. 

AC ETIAM. (Lat. And also.) The introduction 
of the statement of the real cause of action, used 
in those cases where it was necessary to allege a 
fictitious cause of action to give the court juris- 
diction, and also the real cause in compliance with 
the statutes. It is sometimes written acetiam. 2 
Stra. 922. See Bill of Middlesex under Bill, defi- 
nition 2. 

AC ETIAM BILLIE. And also to a bill. See Ac 
Etiam. 

AC SI. (Lat. As if.) Townsh. PI. 23, 27. These 
words frequently occur in old English statutes. 


Lord Bacon expounds their meaning in the statute 
of uses: "The statute gives entry, not simpliciter, 
but with an ac si." Bac. Read. Uses, Works, iv. 
195. 

ACADEME. Place of academic study. Sisters of 
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A. 2d 
222, 225. 

ACADEMY. An institution of learning. An as- 
sociation of experts in some particular branch of 
art, literature, or science. 

In its original meaning, an association formed for mutual 
improvement, or for the advancement of science or art; in 
later use, a species of educational institution, of a grade 
between the common school and the colle g e. Academy of 
Fine Arts v. Philadelphia County, 22 Pa. 496; School hold- 
ing rank between college and common school, U. S. ex rel. 
Jacovides v. Day, C.C.A.N.Y., 32 F.2d 542, 544; Sisters of 
Mercy v. Town of Hooksett, 93 N.H. 301, 42 A. 2d 222, 225. 
See School. 

ACAPTE, In French feudal law. A species of 
relief; a seignorial right due on every change of 
a tenant. A feudal right which formerly pre- 
vailed in Languedoc and Guyenne, being attached 
to that species of heritable estates which were 
granted on the contract of emphyteusis. Guyot, 
Inst. Feod. c. 5, § 12. 

ACCEDAS AD CURIAM. (Lat. That you go to 
court.) An original writ out of chancery directed 
to the sheriff, for the purpose of removing a re- 
plevin suit from a Court Baron or a hundred court 
to one of the superior courts of law. It directs 
the sheriff to go to the lower court, and enroll 
the proceedings and send up the record. See 
Fitzh. Nat. Brev. 18; Dy. 169; 3 Bl. Comm. 34. 

ACCEDAS AD VICE COMITEM. L. Lat. (You 
go to the sheriff.) A writ formerly directed to 
the coroners of a county in England, commanding 
them to go to the sheriff, where the latter had 
suppressed and neglected to return a writ of 
pone, and to deliver a writ to him requiring him 
to return it. Reg. Orig. 83. See Pone. 

ACCELERATION. The shortening of the time 
for the vesting in possession of an expectant in- 
terest. Wharton. Hastening of the enjoyment of 
an estate which was otherwise postponed to a 
later period. Blackwell v. Virginia Trust Co., 1 77 
Va. 299, 14 S.E. 2d 301, 304. 

If the life estate fails for any reason, the remainder is 
"accelerated". Elliott v. Brintlinger, 376 III. 147, 33 N.E. 
2d 199, 201, 133 A.L.R. 1364. The word is also used in ref- 
erence to contracts for payment of money in what is usual- 
ly called an "acceleration clause" by which the time for 
payment of the debt is hastened or advanced because of 
breach of some condition such as failure to pay interest 
when due, McCormick v. Daggett, 162 Ark. 16, 257 S.W. 
358; insolvency of the maker, Wright v. Seaboard Steel & 
Manganese Corporation, C.C.A.N.Y., 272 F. 807; or failure 
to keep mortgaged premises insured, Porter v. Schroll, 93 
Kan. 297, 144 P. 216. 

ACCEPT. To receive with approval or satisfac- 
tion; to receive with intent to retain. See Morris 
v. State, 102 Ark. 513, 145 S.W. 213, 214. Also, in 
the capacity of drawee of a bill, to recognize the 
draft, and engage to pay it when due. It is not 



ACCEPTANCE 


equivalent to "acquiesce." Applett v. Empire Inv. 
Co., 99 Or. 533, 194 P. 461, 462. Admit and agree 
to; accede to or consent to; receive with approval; 
adopt; agree to. Rocha v. Hulen, 6 Cal.App.2d 
245, 44 P.2d 478, 482, 483. Street committee's and 
city engineer's reports. City of Morehead v. 
Blair, 243 Ky. 84, 47 S.W.2d 741, 742. Means 
something more than to receive, meaning to 
adopt, to agree to carry out provisions. Assignee 
of lease, Pickier v. Mershon, 212 Iowa, 447, 236 
N.W. 382, 385; Central State Bank v. Herrick, 
214 Iowa 379, 240 N.W. 242, 246. Renewal health 
and accident policy premiums, Prescott v. Mutual 
Ben. Health and Accident Ass'n, Fla., 183 So. 311, 
314, 119 A.L.R. 525. 


ACCEPTANCE. The taking and receiving of 
anything in good part, and as it were a tacit 
agreement to a preceding act, which might have 
been defeated or avoided if such acceptance had 
not been made. Brooke, Abr. The act of a per- 
son to whom a thing is offered or tendered by an- 
other, whereby he receives the thing with the in- 
tention of retaining it, such intention being evi- 
denced by a sufficient act. JEtna Inv. Corporation 
v. Chandler Landscape & Floral Co., 227 Mo.App. 
17, 50 S.W.2d 195, 197. 

The exercise of power conferred by an offer by 
performance of some act. In re Larney's Estate, 
266 N.Y.S. 564, 148 Misc. 871. 


Bills of Exchange 

An engagement to pay the bill in money when 
due. 4 East 72; Hunt v. Security State Bank, 91 
Or. 362, 179 P. 248,251. 

The act by which the person on whom a bill of exchange 
is drawn (called the "drawee") assents to the request of 
the drawer to pay it, or, in other words, engages, or makes 
himself liable, to pay it when due. Bell-Wayland Co. v. 
Bank of Sugden, 95 Okl. 67, 218 P. 705. It may be by parol 
or in writing, and either general or special, absolute or 
conditional; and it may be impliedly, as well as expressly, 
given. 3 Kent, Comm. 83, 85; Story, Bills, §§ 238, 251. 
Telegram directing drawer to draw draft. Hoffer v. East- 
land Nat. Bank, Tex.Civ.App., 169 S.W.2d 275, 278. Cer- 
tification at request of the payee or holder. Welch v. Bank 
of Manhattan Co., 35 N.Y.S.2d 894, 895, 264 App.Div. 906. 
But the usual and regular mode of acceptance is by the 
drawee's writing across the face of the bill the word "ac- 
cepted," and subscribing his name; after which he is 
termed the acceptor. Story, Bills, § 243. 


Contracts 

Compliance by offeree with terms and condi- 
tions of offer would constitute an "acceptance". 
Davis & Clanton v. C. I. T. Corporation, 190 S.C. 
151, 2 S.E.2d 382, 383. 

Qualifications or conditions make a "counteroffer," not 
an "acceptance." Cohn v. Penn Beverage Co., 313 Pa. 
349, 169 A. 768, 769. Bullock v. McKeon, 104 Cal.App. 72, 
285 P. 392, 395. 

Deed 

Act by which vendee vests himself with title to 
the property. Hardin v. Kazee, 238 Ky. 526, 38 
S.W.2d 438. 


Insurance 

In a contract of insurance, the "acceptance" oc- 
curs when insurer agrees to accept application 
and to issue policy. Acacia Mut. Life Ass'n v. 
Beriy, 54 Ariz. 208, 94 P.2d 770, 772. Delay or in- 
action on the part of an insurer cannot constitute 
an "acceptance". French American Banking Cor- 
poration v. Fireman's Fund Ins. Co., D.C.N.Y., 43 
F.Supp. 494, 498. More than mere mental resolu- 
tion or determination on part of insurer to accept 
application. Must be communicated to applicant. 
Limbaugh v. Monarch Life Ins. Co., Springfield, 
Mass., Mo.App., 84 S.W.2d 208, 212. 

Marine Insurance 

The acceptance of an abandonment by the un- 
derwriter is his assent, either express or to be 
implied from the surrounding circumstances, to 
the sufficiency and regularity of the abandonment. 
Rap. & Law. 

Sales 

An acceptance implies, not only tha physical 
fact of receiving the goods, but also the intention 
of retaining them. Illinois Fuel Co. v. Mobile 
& 0. R. Co., 319 Mo. 899, 8 S.W.2d 834, 841. 

Retaining and using goods. Ohio Electric Co. v. Wis- 
consin-Minnesota Light & Power Co., 161 Wis. 632, 155 N. 
W. 112, 113. Pressure tanks, Dunck Tank Works v. Suther- 
land, 236 Wis. 83, 294 N.W. 510, 513. Coal stokers used 
for 15 months before request for removal, United States 
v. Lux Laundry Co., C.C.A.Ind., 118 F.2d 848, 849. Where 
goods are expressly rejected, receipt does not mean accept- 
ance. State Board of Administration v. Roquemore, 218 
Ala. 120, 117 So. 757, 760. The acceptance of goods sold 
under a contract which would be void by the statute of 
frauds without delivery and acceptance involves something 
more than the act of the vendor in the delivery. It re- 
quires that the vendee should also act, and that his act 
should be of such a nature as to indicate that he receives 
and accepts the goods delivered as his property. He must 
receive and retain the articles delivered, intending there- 
by to assume the title to them, to constitute the acceptance 
mentioned in the statute. Rodgers v. Phillips, 40 N.Y. 
524. See, also, Snow v. Warner, 10 Mete. (Mass.) 132, 43 
Am. Dec. 417. There must be some unequivocal act, with 
intent to take possession as owner. Vacuum Ash & Soot 
Conveyor Co. v. Huyler’s, 101 N.J.Law, 147, 127 A. 203, 204. 
Title and possession must be in unrestricted control of buy- 
er so as not to permit of recall or rescission. Mellen Pro- 
duce Co. v. Fink, 225 Wis. 90, 273 N.W. 538. Mere words 
are insvfficient to establish "delivery and receipt." Mellen 
Produce Co. v. Fink, 225 Wis. 90, 273 N.W. 538, 542. 

The following are the principal varieties of acceptances : 

Absolute. An express and positive agreement to pay the 
bill according to its tenor. 

Conditional. An engagement to pay the bill on the hap- 
pening of a condition. Todd v. Bank of Kentucky, 3 Bush, 
(Ky.) 628. A "conditional acceptance" is in effect a state- 
ment that the offeree is willing to enter into a bargain 
differing in some respects from that proposed in the origi- 
nal offer. The conditional acceptance is, therefore, itself a 
counter offer. Hoskins v. Michener, 33 Idaho, 681, 197 P. 
724. Morris F. Fox & Co. v. Lisman, 208 Wis. 1, 237 N.W. 
267, 271. Worley v. Holding Corporation, 348 111. 420, 181 
N.E. 307, 309. 

Express. An undertaking in direct and express terms to 
pay the bill; an absolute acceptance. 

Implied. An undertaking to pay the bill inferred from 
acts of the drawee of a character which fairly warrant such 
an inference. In case of a bilateral contract, "acceptance" 
of an offer need not be expressed, but may be shown by 
any words or acts indicating the offeree's assent to the 


27 



ACCEPTANCE 


proposed bargain. Prescott v. Mutual Ben. Health and Ac- 
cident Ass' n, 133 Fla. 510, 183 So. 311, 315, 119 A.L.R. 525. 
Frederick Raff Co. v. Murphy, 110 Conn. 234, 147 A. 709, 
711. Tenant for several months continued to occupy store- 
room and paid rentals, C. R. Anthony Co. v. Stroud, 189 
Oki. 104, 114 P.2d 177, 178. Landlord's reletting leased 
premises after default in rent, In re Lear Shoe Co., Sup., 
22 N.Y.S.2d 778, 782. Taking possession, exercise of owner- 
ship and dominion and failure to complain to seller, Bell 
v. Main, D.C.Pa., 49 F.Supp. 689, 692. 

Partial. An acceptance varying from the tenor of the 
bill. An acceptance to pay part of the amount for which 
the bill is drawn, 1 Strange 214, or to pay at a different 
time, 14 Jur. 806; Hatcher v. Stolworth, 25 Miss. 376; 
or at a different place, 4 M. & S. 462, would be partial. 
For some examples of what do and what do not constitute 
conditional acceptances, see Heaverin v. Donnell, 7 Smedes 
& M. (Miss.) 245, 45 Am. Dec. 302; Campbell v. Pettengill, 7 
Greenl. (Me.) 126, 20 Am. Dec. 349; Ensign v. Clark Bros. 
Cutlery Co., 195 Mo.App. 584, 193 S. W. 961, 962. Provi- 
sions respecting cutting of timber etc. on optioned land, did 
not destroy the "acceptance". Bastian v. United States, C. 
C.A.Ohio, 118 F.2d 777, 779. Would be in named place for 
purpose of entering into option, Ackerman v. Carpenter, 
113 Vt. 77, 29 A. 2d 922, 925. Counter proposition to option. 
Tholl Oil Co. v. Miller, 197 La. 976, 3 So. 2d 97, 98. Con- 
ditional, qualified acceptance, Moore Bros. v. Kirkpatrick, 
Tex.Civ.App., 172 S.W.2d 135, 137. 

Qualified. One either conditional or partial, and which 
introduces a variation in the sum, time, mode, or place of 
payment. 

Supra protest. An acceptance by a third person, after 
protest of the bill for non-acceptance by the drawee, to 
save the honor of the drawer or some particular indorser. 
A. general acceptance is an absolute acceptance precisely 
in conformity with the tenor of the bill itself, and not 
qualified by any statement, condition, or change. Todd v. 
Bank of Kentucky, 3 Bush (Ky.) 628. A special acceptance 
is the qualified acceptance of a bill of exchange, as where 
it is accepted as payable at a particular place "and not 
elsewhere." Rowe v. Young, 2 Brod. & B. 180. See Trade 
Acceptance. 

ACCEPTANCE AU BESOIN. Fr, In French 
law. Acceptance in case of need; an acceptance 
by one on whom a bill is drawn au besoin, that is, 
in case of refusal or failure of the drawee to ac- 
cept. Story, Bills, §§ 65, 254, 255. 

ACCEPTARE, 

Civil Law 

Lat. To accept; to assent; to assent to a prom- 
ise made by another. Gro. de J. B. lib. 2, c. 11, 

§ 14. 

Pleading 

To accept. Acceptavit, he accepted. 2 Strange, 
817. Non acceptavit, he did not accept. 4 Man. & 
G. 7. 

ACCEPTEUR PAR INTERVENTION. In French 
law. Acceptor of a bill for honor. 

ACCEPTILATION. In the civil and Scotch law. 
A release made by a creditor to his debtor of his 
debt, without receiving any consideration. Ayl. 
Pand. tit. 26, p. 570. It is a species of donation, 
but not subject to the forms of the latter, and is 
valid unless in fraud of creditors. Merl. Repert. 

The verbal extinction of a verbal contract, with 
a declaration that the debt has been paid when it 
has not; or the acceptance of something merely 
imaginary in satisfaction of a verbal contract. 
Sanders' Just. Inst. (5th Ed.) 386. 


ACCEPTOR. The person who accepts a bill of 
exchange, (generally the drawee,) or who engages 
to be primarily responsible for its payment. Nis- 
senbaum v. State, 38 Ga.App. 253, 143 S.E. 776, 777. 

ACCEPTOR SUPRA PROTEST. One who ac- 
cepts a bill which has been protested, for the hon- 
or of the drawer or any one of the indorsers. 

ACCESS. Approach; or the means, power, or 
opportunity of approaching. Sometimes import- 
ing the occurrence of sexual intercourse, Jackson 
v. Jackson, 182 Okl. 74, 76 P.2d 1062, 1066; other- 
wise as importing opportunity of communication 
for that purpose as between husband and wife. 

In real property law, the term "access" denotes the 
right vested in the owner of land which adjoins a road or 
other highway to go and return from his own land to the 
highway without obstruction. Cobb u. Commissioners of 
Lincoln Park, 202 111. 427, 67 N.E. 5, G, 8. "Access" to 
property does not necessarily carry with it possession. 
People v. Brenneauer, 166 N.Y.S. 801, 806, 101 Misc. 156. 
A deed, however, which conveys land and "also the right 
of access to the adjoining park and use of spring on same," 
may be deemed to convey not merely the right to pass 
through the park in order to reach the spring, but to con- 
vey a right of entry into the pail( as a park and by im- 
plication, the right to the use and enjoyment of the park. 
Goetz v. Knoxville Power & Light Co., 154 Tenn. 545, 290 
S.W. 409, 414. 

The right of "access" as applied to a private wharf on 
public lands merely means that there may not be built an 
obstruction separating the lands from the navigable high- 
way. City of Oakland v. Hogan, 41 Cal.App.2d 333, 106 P. 
2d 987, 995. 

The right of "access to public records" includes not 
only a legal right of access but a reasonable opportunity to 
avail oneself of the same. American Surety Co. of New 
Yorkv. Sandberg, D.C.Wash., 225 F. 150, 155. 

Canon Law 

The right to some benefice at some future time. 

ACCESS (EASEMENT OF). An "easement of ac- 
cess" is the right which an abutting owner has of 
ingress to and egress from his premises, in addi- 
tion to the public easement in the street. State 
Highway Board v. Baxter, 167 Ga. 124, 144 S.E. 
796, 800; Lang v. Smith, 113 Pa.Super. 559, 173 
A. 682, 683. "Access to an underground sewer" 
means more than a right to open the surface to 
make repairs, and implies the right of connection 
by branches. Heyman v. Biggs, 150 N.Y.S. 246, 
247, 164 App.Div. 430. 

ACCESSARY. See Accessory. 

ACCESSIO. In Roman law. An increase or ad- 
dition; that which lies next to a thing, and is 
supplementary and necessary to the principal 
thing; that which arises or is produced from the 
principal thing; an "accessory obligation" (q. v.). 
Calvinus, Lex. Jurid. 

One of the modes of acquiring property, being 
the extension of ownership over that which grows 
from, or is united to, an article which one already 
possesses. Mather v. Chapman, 40 Conn. 382, 
397, 16 Am. Rep. 46. 

Accessio includes both accession and accretion 
as used in the common law. See Adjunctio. 


28 



ACCESSION. Coming into possession of a right 
or office; increase; augmentation; addition. 

The right to all which one's own property produces, 
whether that property be movable or immovable; and the 
right to that which is united to it by accession, either na- 
turally or artificially. 2 Kent, 360; 2 Bl.Comm. 404; 
Franklin Service Stations v. Sterling Motor Truck Co. of 
N. E., 50 R. I. 336, 147 A. 754, 755. 

Riparian owners' right to abandoned river beds and 
rights of alluvion by accretion and reliction, Manry v. 
Robison, 122 Tex. 213, 56 S.W.2d 438, 443, 444. 

A principle derived from the civil law, by which the 
owner of property becomes entitled to all which it pro- 
duces, and to all that is added or united to it, either natu- 
rally or artificially, (that is, by the labor or skill of anoth- 
er.) even where such addition extends to a change of form 
or materials; and by which, on the other hand, the pos- 
sessor of property becomes entitled to it, as against the 
original owner, where the addition made to it by his skill 
and labor is of greater value than the property itself, or 
where the change effected in its form is so great as to 
render it impossible to restore it to its original shape. 
Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148 
S.E. 461, 463. In Blackwood Tire & Vulcanizing Co. v. 
Auto Storage Co., 133 Tenn. 515, 182 S. W. 576, L.R.A.1916E, 
254, Ann.Cas.l917C, 1 168, this principle was applied in favor 
of the conditional seller who, on nonpayment, retook the 
automobile sold, together with tire casings which the buy- 
er had fitted thereto. Valley Chevrolet Co. v. 0. S. Stapley 
Co., 50 Ariz. 417, 72 P.2d 945. 

International Law 

The absolute or conditional acceptance by one 
or several states of a treaty already concluded be- 
tween other sovereignties. Merl. Repert. It may 
be of two kinds: First, the formal entrance of a 
third state into a treaty so that such state be- 
comes a party to it; and this can only be with 
the consent of the original parties. Second, a 
state may accede to a treaty between other states 
solely for the purpose of guarantee, in which case, 
though a party, it is affected by the treaty only as 
a guarantor. 1 Oppenheim, Int.L. sec. 532. See 
Adhesion. 

Also, the commencement or inauguration of a 
sovereign's reign. 

ACCESSION, DEED OF. In Scotch law. A deed 
executed by the creditors of a bankrupt or insol- 
vent debtor, by which they approve of a trust giv- 
en by their debtor for the general behoof, and 
bind themselves to concur in the plans proposed 
for extricating his affairs. Bell, Diet. 

ACCESSORIUM NON DUCIT, SED SEQUITUR 
SUUM PRINCIPALE, Co. Litt. 152a, 389a. That 
which is the accessory or incident does not lead, 
but follows, its principal. 

ACCESSORIUS SEQUITUR NATURAM SUI 
PRINCIPALIS. An accessary follows the nature 
of his principal. 3 Inst. 139. One who is acces- 
sary to a crime cannot be guilty of a higher de- 
gree of crime than his principal. 

ACCESSORY. Anything which is joined to anoth- 
er thing as an ornament, or to render it more 
perfect, or which accompanies it, or is connected 
with it, as an incident, or as subordinate to it, or 
which belongs to or with it; for example, the 


ACCESSORY 

halter of a horse, the frame of a picture, the 
keys of a house. 

Adjunct or accompaniment. Louis Werner Saw 
Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270. 

A sale of land carried with it the standing timber as an 
"accessory." Woollums v. Hewitt, 142 La. 597, 77 So. 295, 
296. 

Automobile Accessories 

Articles primarily adapted for use in motor ve- 
hicles, under revenue acts. Universal Battery Co. 
v. U. S., Ct.Cl., 50 S.Ct. 422, 423, 281 U.S. 580, 74 
L.Ed. 1051. 

Criminal Law 

Contributing to or aiding in the commission of 
a crime. One who, without being present at the 
commission of a felonious offense, becomes guilty 
of such offense, not as a chief actor, but as a par- 
ticipator, as by command, advice, instigation, or 
concealment; either before or after the fact or 
commission; a particeps criminis. 4 Bl.Comm. 
35; Cowell. 

One who is not the chief actor in the offense, nor pres- 
ent at its perfornlance. but in some way concerned therein, 
either before or after the act committed. State v. Thomas, 
136 A. 475, 477, 105 Conn. 757. One who aids and abets 
another. People v. Smith, 260 N.W. 911, 271 Mich. 553. 
Commands or counsels another. United States v. Peoni, 
C.C.A.N.Y., 100 F.2d 401, 402. 

An "accessory" to a crime is always an "accomplice." 
People v. Ah Gee, 37 Cal.App. 1, 174 P. 371, 373. In certain 
crimes, there can be no accessories; all who are concerned 
are principals. These are (according to many authorities) 
treason, and all offenses below the degree of felony: 4 
Bla.Comm. 35; Com. v. McAtee, 8 Dana (Ky.) 28; Wil- 
liams v. State, 12 Smedes & M. (Miss.) 58. 

Accessory Before the Fact 

One who, being absent at the time a crime is 
committed, yet assists, procures, counsels, incites, 
induces, encourages, engages, or commands anoth- 
er to commit it. 4 Steph, Comm. 90, note n. 
People v. Owen, 241 Mich. Ill, 216 N.W. 434. 
United States v. Pritchard, D.C.S.C., 55 F.Supp. 
201, .203; rape, Clayton v. State, 244 Ala. 10, 13 
So.2d 420, 422. 

Murder, Wells v. State, 94 Ga. 70, 20 S.E.2d 580, 
582. Distilling, State v. Lackmann, Mo., 12 S.W. 
2d 424, 425. 

Accessory During the Fact 

One who stands by without interfering or giv- 
ing such help as may be in his power to prevent 
the commission of a criminal offense. Farrell v. 
People, 8 Colo.App. 524, 46 P. 841. 

Accessory After the Fact 

One who, having full knowledge that a crime 
has been committed, conceals it from the magis- 
trate, and harbors, assists, or protects the person 
charged with, or convicted of, the crime. Ver- 
non's Ann.C.C.P. art. 53. 

All persons who, after the commission of any 
felony, conceal or aid the offender, with knowl- 
edge that he has committed a felony, and with in- 
tent that he may avoid or escape from arrest, 
trial, conviction, or punishment, are accessories. 


29 



ACCESSORY 

Comp. Laws N.D.1913, § 9219; Rev.Code S.D.1919, 
§ 3595. 

An accessory after the fact is a person who, knowing a 
felony to have been committed by another, receives, re- 
lieves, comforts or assists the felon, in order to enable him 
to escape from punishment, or the like. Buck v. Common- 
wealth, 116 Va. 1031, 83 S.E. 390, 393. Knowledge, or de- 
nial of knowledge, of perpetration of crime, or silence 
does not make one an "accessory after the fact." Com- 
monwealth v. Giacobbe, 341 Pa. 187, 19 A. 2d 71, 75. Cantu 
v. State, 135 S.W.2d 705, 710, 141 Tex.Cr.R. 99. But af- 
firmative action by false testimony or otherwise usable by 
accused to escape punishment constitutes one "accessory" 
as to his testimony. Fisher v. State, 34 S.W.2d 293, 294, 
117 Tex.Cr.R. 552; false statements to sheriff relative to 
defendant's connection with homicide in order to evade 
arrest, Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853, 
854. 

Aiders and Abettors Distinguished 

The concept of an "accessory before the fact" 
presupposes a prearrangement to do the criminal 
act, and to constitute one an "alder and abettor” 
he must be on the ground and by his presence 
aid, encourage or incite the principal. Morel v. 
United States, C.C.A.Ohio, 127 F.2d 827, 830, 831. 

Principal Distinguished 

"Principal in the second degree," as distin- 
guished from "accessory before the fact," is one 
who aids in commission of felony by being either 
actually or constructively present, aiding, and 
abetting commission of felony, when perpetrated. 
Neumann v. State, 1 16 Fla. 98, 156 So. 237, 239. 

ACCESSORY ACTION. In Scotch practice. An 
action which is subservient or auxiliary to anoth- 
er. Of this kind are actions of "proving the ten- 
or," by which lost deeds are restored; and actions 
of "transumpts," by which copies of principal 
deeds are certified. Bell, Diet. 

ACCESSORY CONTRACT. In the civil law. A 
contract which is incident or auxiliary to another 
or principal contract; such as the engagement of 
a surety. Poth. Obi. pt. 1, c. 1, § 1, art. 2. 

A principal contract is one entered into by both parties 
on their own accounts, or in the several qualities they as- 
sume. An accessory contract is made for assuring the per- 
formance of a prior contract, either by the same parties or 
by others; such as suretyship, mortgage, and pledge. 
Blaisdell v. Coe, 83 N.H. 167, 139 A. 758, 65 A.L.R. 626. 


ACCESSORY OBLIGATION. 

Civil Law 

An obligation which is incident to another or 
principal obligation; the obligation of a surety. 
Poth. Obi. pt. 2, c. 1, § 6. 

Scotch Law 

Obligations to antecedent or primary obliga- 
tions, such as obligations to pay interest, etc. 
Ersk. Inst. lib. 3, tit. 3, § 60. 

See, further, Obligation. 

ACCESSORY TO ADULTERY. Implies more 
than connivance, which is merely knowledge with 
consent. A conniver abstains from interference; 


an accessory directly commands, advises, or pro- 
cures the adultery. 20 & 21 Viet. c. 85, §§ 29, 31. 

ACCIDENT. The word "accident" is derived 
from the Latin verb "accidere" signifying "fall 
upon, befall, happen, chance." In an etymological 
sense anything that happens may be said to be 
an accident and in this sense, the word has been 
defined as befalling; a change; a happening; an 
incident; an occurrence or event. In its most 
commonly accepted meaning, or in its ordinary or 
popular sense, the word may be defined as mean- 
ing a fortuitous circumstance, event, or happen- 
ing, an event happening without any human 
agency, or if happening wholly or partly through 
human agency, an event which under the circum- 
stances is unusual and unexpected by the person 
to whom it happens; an unusual, fortuitous, un- 
expected, unforeseen or unlooked for event, hap- 
pening or occurrence; an unusual or unexpected 
result attending the operation or performance of 
a usual or necessary act or event; chance or 
contingency; fortune; mishap; some sudden and 
unexpected event taking place without expectation, 
upon the instant, rather than something which 
continues, progresses or develops; something 
happening by chance; something unforeseen, un- 
expected, unusual, extraordinary or phenominal, 
taking place not according to the usual course of 
things or events, out of the range of ordinary 
calculations; that which exists or occurs abnor- 
mally, or an uncommon occurrence; the word 
may be employed as denoting a calamity, casual- 
ty, catastrophe, disaster, an undesirable or unfor- 
tunate happening; any unexpected personal in- 
jury resulting from any unlooked for mishap or 
occurrence; any unpleasant or unfortunate oc- 
currence, that causes injury, loss, suffering or 
death; some untoward occurrence aside from the 
usual course of events. Adams v. Metropolitan 
Life Ins. Co., 136 Pa.Super. 454, 7 A.2d 544, 547; 
without known or assignable cause, Ramsay v. 
Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856, 
858. 

In its proper use the term excludes negligence; Dallas 
Ry. & Terminal Co. v. Allen, Tex.Civ.App., 43 S.W.2d 165, 
170; that is, an accident is an event which occurs without 
the fault, carelessness, or want of proper circumspection 
of the person affected, or which could not have been avoid- 
ed by the use of that kind and degree of care necessary to 
the exigency and in the circumstances in which he was 
placed. Brown v. Kendall, 6 Cush. (Mass.) 292; essential 
requirement being that happening be one to which human 
fault does not contribute, Hogan v. Kansas City Public 
Service Co., 322 Mo. 1103, 19 S.W.2d 707, 713, 65 A.L.R. 129; 
happening of an event without any human agency, Terry 
v. Woodmen Accident Co., 225 Mo.App. 1223, 34 S.W.2d 
163, 164. It has been said, moreover, that the word "ac- 
cident" does not have a settled legal signification; Klop- 
fenstein v. Union Traction Co., 112 Kan. 770, 212 P. 1097, 
1098; and that in its ordinary meaning it does not nega- 
tive the idea of negligence on the part of the person whose 
physical act caused the occurrence. Campbell v. Jones, 73 
Wash. 688, 132 P. 635, 636. Not merely inevitable casual- 
ty or the act of providence, or what is technically called 
vis major, or irresistible force. Gardner v. State, 1 N.Y. 
S.2d 994, 997, 166 Misc. 113. 

See Act of God. 

Automobiles 

The word "accident" as used in automobile lia- 
bility policy requiring notice of any "accident" 


30 



ACCION 


to be given to the insurer as a condition precedent 
to liability means an untoward and unforeseen 
occurrence in the operation of the automobile 
which results in injury to the person or property 
of another. Ohio Casualty Ins. Co. v. Marr, C.C. 
A.Okl.,98 F.2d 973,975. 

Connotes event which occurs without one's foresight or 
expectation, and does not exclude negligence. American 
Indemnity Co. v. Jamison, Tex.Civ.App., 62 S.W.2d 197; 
without intention or design, Rothman v. Metropolitan 
Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417, 421, 117 
A. L. R. 1169. 

The word "accident", requiring operator of vehicle to 
stop immediately in case of accident, contemplates any 
situation occurring on the highway wherein he so operates 
his automobile as to cause injury to the property or person 
of another using the same highway. State v. Masters, 10G 
W.Va. 46, 144 S.E. 718, 719. 

Equity 

Such an unforeseen event, misfortune, loss, act, 
or omission as is not the result of any negligence 
or misconduct in the party. Engler v. Knoblaugh, 
131 Mo.App. 481, 110S.W. 16. 

Unforeseen and undesigned event, productive of 
disadvantage. Wharton. Surprise is used inter- 
changeably. State ex rel. Hartley v. Innes, 137 
Mo.App. 420, 118 S.W. 1168. 

Occurrence, not the result of negligence or misconduct of 
the party seeking relief in relation to a contract, as was 
not anticipated by the parties when the same was entered 
into, and which gives an undue advantage to one of them 
over another in a court of law. White & Hamilton Lum- 
ber Co. v. Foster, 157 Ga. 493, 122 S.E. 29, 30. 


Insurance Contracts 

An accident within accident insurance policies is 
an event happening without any human agency, 
or, if happening through such agency, an event 
which, under circumstances, is unusual and not 
expected by the person to whom it happens. Size- 
more v. National Casualty Co., 108 W.Va. 550, 151 
S.E. 841. 

Sudden and instant happening, referable to definite and 
fixed period of time. Jackson v. Employers' Liability As- 
sur. Corporation, 248 N.Y.S. 207, 210, 139 Misc. 686. 

May be inflicted intentionally and maliciously by one 
not the agent of the insured, if unintentional on the part 
of the insured. Goodwin v. Continental Casualty Co., 175 
Okl. 469, 53 P.2d 241, 243. 

A more comprehensive term than "negligence," and in 
its common signification the word means an unexpected 
happening without intention or design. Sontag v. Galer, 
279 Mass. 309, 181 N.E. 182, 183. 

Accidental' injury or death is an unintended and unde- 
signed result arising from acts done, while injury or death 
by "accidental means" is a result arising from acts unin- 
tentionally done. Adams v. Metropolitan Life Ins. Co., 136 
Pa. Super. 454, 7 A.2d 544, 547. 


Maritime Law and Marine Insurance 

"Accidents of navigation" or "accidents of the 
sea" are such as are peculiar to the sea or to usual 
navigation or the action of the elements, which 
do not happen by the intervention of man, and 
are not to be' avoided by the exercise of proper 
prudence, foresight, and skill. The G. R. Booth, 
19 S.Ct. 9, 171 U.S. 450, 43 L.Ed. 234. See also 
Perils of the Sea. 


Practice 

That which ordinary prudence could not have 
guarded against. Cupples v. Zupan, 35 Idaho 
458, 207 P. 328, 329. An event happening unex- 
pectedly and without fault; an undesigned and 
unforeseen occurrence of an afflictive or unfor- 
tunate character; a casualty or mishap. Allen 
v. State, 13 Okl.Cr. 533, 165 P. 748; Baird v. Ken- 
sal Light & Power Co., 246 N.W. 279, 282, 63 N.D. 
88; drunkenness of juror during recess required 
discharge of jury. Fetty v. State, 119 Neb. 619, 
230 N.W. 440, 442. 

Workmen's Compensation 

Term "accident," within Workmen's Compensa- 
tion Act, has been defined as a befalling; an event 
that takes place without one's foresight or ex- 
pectation; an undesigned, sudden, and unexpected 
event; chance; contingency; often, an unde- 
signed and unforeseen occurrence of an afflictive 
or unfortunate character; casualty; mishap; as, 
to die by an accident. Its synonyms are chance, 
contingency, mishap, mischance, misfortune, dis- 
aster, calamity, catastrophe. Term "accidental" 
has been defined as happening by chance, or un- 
expectedly; taking place not according to the 
usual course of things; casual; fortuitous; as, 
an accidental visit. Its synonyms are undesigned, 
unintended, chance, unforeseen, unexpected, un- 
premeditated; accessory, collateral, secondary,, 
subordinate; extrinsic, extraneous, additional, 
adscititious, dependent, conditional. Indian Ter- 
ritory Illuminating Oil Co. v. Williams, 157 Okl. 
80, 10 P.2d 1093, 1094. 

With or without negligence. Great Atlantic & 
Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 
87, 88. 

Not technical legal term. Arquin v. Industrial 
Commission, 349 111. 220, 181 N.E. 613, 614, 

ACCIDENTAL. Happening by chance, or unex- 
pectedly; taking place not according to usual 
course of things; casual; fortuitous. Morris v. 
New York Life Ins. Co., C.C.A.Md., 49 F.2d 62, 63; 
Murphy v. Travelers Ins. Co., Neb., 2 N.W. 2d 576, 
578, 579. 

ACCIDENTAL KILLING. One resulting from an 
act which is lawful and lawfully done under a 
reasonable belief that no harm is possible; — dis- 
tinguished from "involuntary manslaughter," 
which is the result of an unlawful act, or of a law- 
ful act done in an unlawful way. Rowe v. Com- 
monwealth, 206 Ky. 803, 268 S.W. 571, 573. 

ACCIDENTAL VEIN. See Vein. 

ACCIDERE. Lat. To fall; fall in; come to 
hand; happen. Judgment is sometimes given 
against an executor or administrator to be satis- 
fied out of assets quando acciderint; e., when 
they shall come to hand. See Quando Acciderint. 

ACCION. In Spanish law. A right of action; 
also the method of judicial procedure for the 


31 



ACCIPERE 


recovery of property or a debt. Escriche, Die. 
Leg. 49. Wilder v. Lambert, 91 Tex. 510, 44 S.W. 
281,284. 

ACCIPERE QUID UT JUSTITIAM FACIAS, NON 
EST TAM ACCIPERE QUAM EXTORQUERE. 
To accept anything as a reward for doing justice 
is rather extorting than accepting. Lofft, 72. 

ACCIPITARE. To pay relief to lords of manors. 
Capitali domino accipitare, e. , to pay a relief, 
homage, or obedience to the chief lord on becom- 
ing his vassal. Fleta, lib. 2, c. 50. 

ACCOLA. 

Civil Law 

One who inhabits or occupies land near a place, 
as one who dwells by a river, or on the bank of 
a river. Dig. 43, 13, 3, 6. 

Feudal Law 

A husbandman; an agricultural tenant; a ten- 
ant at a manor. Spelman. A name given to a 
class of villeins in Italy. Barr, St. 302. 

ACCOMENDA. In maritime law. A contract be- 
tween the owner of goods and the master of a 
ship, by which the former intrusts the property to 
the latter to be sold by him on their joint ac- 
count. 

In such case, two contracts take place : First, the con- 
tract called mandatum, by which the owner of the proper- 
ty gives the master power to dispose of it; and the con- 
tract of partnership, in virtue of which the profits are to be 
divided between them. One party runs the risk of losing 
his capital; the other, his labor. If the sale produces no 
more than first cost, the owner takes all the proceeds. It 
is only the profits which are to be divided. Emerig.Mar. 
Loans, § 5. 

ACCOMMODATED PARTY. One to whom the 
credit of the accommodation party is loaned, and 
is not necessarily the payee, since the inquiry al- 
ways is as to whom did the maker of the paper 
loan his credit as a matter of fact. Wilhoit v. 
Seavall, 121 Kan. 239, 246 P. 1013, 1015, 48 A.L.R. 
1273; not third person who may receive advan- 
tage, State v. Banta, 148 Okl. 239, 299 P. 479, 483. 
First Nat. Bank v. Boxley, 129 Okl. 159, 264 P. 
184, 186, 64 A.L.R. 588. 

ACCOMMODATION. An arrangement or engage- 
ment made as a favor to another, not upon a con- 
sideration received; something done to oblige, us- 
ually spoken of a loan of money or commercial 
paper; also a friendly agreement or composition 
of differences. Abbott; Sales v. Martin, 173 Ky. 
616, 191 S.W. 480, 482. The word implies no con- 
sideration. William D. Seymour & Co. v. Castell, 
160 La. 371, 107 So. 143, 145. 

"While a party's intent may be to aid a maker of note 
by lending his credit, if he seeks to accomplish thereby 
legitimate objects of his own, and not simply to aid maker, 
the act is not for 'accommodation.' " Bazer v. Grimmett, 
16 La.App. 613, 135 So. 54, 56. 

ACCOMMODATION ACCEPTANCE. The ac- 
ceptance of accommodation paper. 

ACCOMMODATION BILL OR NOTE. See Ac- 
commodation Paper. 


ACCOMMODATION INDORSEMENT. See In- 
dorsement. 

ACCOMMODATION INDORSER. A party who 
places his name to a note without consideration 
for purpose of benefiting or accommodating some 
other party. Stubbins Hotel Co. v. Bassbarth, 
43 N.D. 191, 174 N.W. 217, 218; McDaniel v. Al- 
toona State Bank, 126 Kan. 719, 271 P. 394. 

ACCOMMODATION LANDS. Land bought by a 
builder or speculator, who erects houses thereon, 
and then leases portions thereof upon an im- 
proved ground-rent. 

ACCOMMODATION MAKER. One who puts his 
name to a note without any consideration with the 
intention of lending his credit to the accommo- 
dated party. In re Chamberlain's Estate, Cal. 
App., 109 P.2d 449, 454. 

In this connection "without consideration" means "with- 
out consideration to the accommodating party directly." 
Warren Nat. Bank, Warren, Pa., v. Suerken, 45 Cal. App. 
736, 188 P. 613, 614. One who receives no part of the pro- 
ceeds, which are used exclusively for another maker's bene- 
fit, as in discharging his own personal obligation. Backer 
v. Grummett, 39 Cal. App. 101, 178 P. 312, 313. Must not re- 
ceive any benefit or consideration directly or indirectly, 
and transaction must be one primarily for the benefit of 
the payee. First Trust Co. of Lincoln v. Anderson, 135 
Neb. 397, 281 N.W. 796, 798; Void of present or anticipated 
personal profit, gain, or advantage. Robertson v. City Nat. 
Bank of Bowie, 120 Tex. 226, 36 S.W.2d 481, 483. 

Incidental benefit to party insufficient. Morrison v. 
Painter, Mo.App., 170 S.W.2d 965, 970. 

ACCOMMODATION NOTE. One to which ac- 
commodating party has put his name, without 
consideration, to accommodate some other party, 
who is to issue it and is expected to pay it. 
Brown Carriage Co. v. Dowd, 155 N.C. 307, 71 
S.E. "721, 724; Farmers Loan & Trust Co. v. 
Brown, 182 Iowa, 1044, 165 N.W. 70, 73. 

ACCOMMODATION PAPER. An accommoda- 
tion bill or note is one to which the accommodat- 
ing party, be he acceptor, drawer, or indorser, has 
put his name, without consideration, for the pur- 
pose of benefiting or accommodating some other 
party who desires to raise money on it, and is 
to provide for the bill when due. Miller v. Lar- 
ned, 103 Iii. 562; Crothers v. National Bank of 
Chesapeake City, 158 Md. 587, 149 A. 270, 272; 
Hickox v. Hickox, Tex.Civ.App., 151 S.W. 2d 913, 
917. 

Must be executed for the purpose of loaning credit, and 
incidental benefit to party is insufficient. Morrison v. 
Painter, Mo.App., 17C .3.W.2d 965, 970. 

ACCOMMODATION PARTY. One who has 
signed an instrument as maker, drawer, acceptor, 
or indorser without receiving value therefor, and 
for purpose of lending his name to some other 
person as means of securing credit. Bachman v. 
Junkin, 129 Neb. 165, 260 N.W. 813. 

The term does not include one who, for the accommoda- 
tion of the maker, guaranteed the payment of a note. 
Noble v. Beeman- Spaulding- Woodward Co., 65 Or. 93, 131 
P. 1006, 1010. 

Indorser, Myrtilles, Inc., v. Johnson, 124 Conn. 177, 199 
A. 115, 117; president and directors of bank, Davis v. Holt, 
Federal Deposit Ins. Corporation, Intervenor, Mo.App., 154 


32 



ACCORD 


S. W.2d 595. 597; apparent comaker. McLendon v. Lane, 
51 Ga.App. 409, 180 S.E. 746; to make note look better for 
payee bank, Pirtle v. Johnson, 145 Kan. 8, 64 P.2d 2, 4. 

ACCOMMODATION ROAD. A road opened for 
benefit of certain individuals to go from and to 
their homes, for service of their lands, and for 
use of some estates exclusively. Civ. Code La. 
art. 706. 

ACCOMMODATION TRAIN. One designed to 
accommodate local travel by stopping at most 
stations. Gray v. Chicago, M. & St. P. R. Co., 189 
111. 400, 59 N.E. 950, 951. In another aspect it is 
a train designed to carry passengers as well as 
freight. White v. 111. Cent. R. Co., 99 Miss. 651, 
55 So. 593, 595. 

ACCOMMODATION WORKS. Works which a 
railway company is required to make and main- 
tain for the accommodation of the owners or occu- 
piers of land adjoining the railway; e. g., gates, 
bridges, culverts, fences, etc. 8 Viet. c. 20, § 68. 

ACCOMMODATUM. The same as commodatum, 
<?• 

ACCOMPANY. To go along with. Webster's 
Diet. To go with or attend as a companion or as- 
sociate, to occur in association with. United 
States v. Lee, C.C.A.Wis., 131. F.2d 464, 466. 

The word has been defined judicially in cases involving 
varied facts; thus, a boy driver was held not accompany- 
ing the team when he was runnning to stop it. Willis v. 
Semmes, 111 Miss. 589, 71 So. 865, 866. A motion based 
on answer already deposited with the clerk of court is 
accompanied with copy of answer. Los Angeles County v. 
Lewis, 179 Cal. 398, 177 P. 154, 155. An automobile driver 
under sixteen is not accompanied by an adult person unless 
the latter exercises supervision over the driver. Rush v. 
McDonnell, 214 Ala. 47, 106 So. 175, 179. An unlicensed 
driver is not accompanied by a licensed driver unless the 
latter is near enough to render advice and assistance. 
Hughes v. New Haven Taxicab Co., 87 Conn. 416, 87 A. 
721. 

ACCOMPLICE. In criminal law. A person who 
knowingly, voluntarily, and with common intent 
with the principal offender unites in the commis- 
sion of a crime. State v. Keithley, 83 Mont. 177, 
271 P. 449, 451, People v. Frahm, 107 Cal.App. 253, 
290 P. 678, 682, State v. Coroles, 74 Utah, 94, 277 
P. 203, 204. One who is in some way concerned or 
associated in commission of crime; partaker of 
guilt; one who aids or assists, or is an accessory. 
McLendon v. U. S., C.C.A.Mo., 19 F.2d 465, 466. 
Equally concerned in the commission of crime. 
Fryman v. Commonwealth, 289 Ky. 540, 159 S.W. 
2d 426, 429. 

An "accomplice" is one who is guilty of complicity in 
crime charged, either by being present and aiding or abet- 
ting in it, or having advised and encouraged it, though 
absent from place when it was committed, though mere 
presence, acquiescence, or silence, in the absence of a duty 
to act, is not enough, no matter how reprehensible it may 
be, to constitute one an accomplice. State v. Arnold, 84 
Mont. 348. 275 P. 757, 760; presence unnecessary. King 
v. State. 135 Tex.Cr.ll. 378, 120 S.W.2d 590, 592. Knowl- 
edge and concealment not sufficient. Wallis v. State, Okl. 
Cr.App., 292 P. 1056, 1057. 

Falsely denying having knowledge of crime not of itself 
sufficient. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 
290, 293. 

Black's Law Dictionary Revised 4th Ed. -3 


Thief and receiver of stolen property ordinarily not 
"accomplices". People v. Lima, 25 Cal. 2d 573, 154 P.2d 
698, 700, 701. 

Giver of bribe is an "accomplice". Turner v. State, 58 
Ga.Lpp. 775, 199 S.E. 837, 839, Contra, State v. Emory, 55 
Idaho 649, 46 P.2d 67, 70. 

As specifically applied to witnesses for the state and the 
necessity for corroborating them, "accomplice" includes all 
persons connected with the offense by an unlawful act or 
omission either before, at the time of, or after the com- 
mission of the offense, whether such witness was present 
or participated in the crime or not. Chandler v. State, 89 
Tex.Cr.R. 309, 230 S.W. 1002, 1003. 

Mere presence is insufficient. Snowden v. State, 27 Ala. 
App. 14, 165 So. 410. 

Suborned witness is an "accomplice". People v. Nicosia, 
4 N.Y.S.2d 35, 37, 166 Misc. 597. Contra. State v. De 
Vaughn, 2 Cal.App.2d 572, 39 P.2d 223, 224. 

Receiver of bribe not "accomplice" of giver. People v. 
Martin, 114 Cal.App. 392, 300 P. 130, 132. 

The term includes all the participes criminis, Darden v. 
State, 12 Ala. App. 165, 68 So. 550, 551, whether they are 
considered, in strict legal propriety, as principals in the 
first or second degree, or merely as accessories before or 
after the fact. In re Rowe, 23 C.C.A. 103, 77 F. 161; Luck 
v. State, 125 Tex.Cr.R. 152, 67 S.W.2d 302. But in Ken- 
tucky it has been held that "accomplice" does not include 
an accessory after the fact. See, however, Commonwealth 
v. Barton, 153 Ky. 465, 156 S.W. 113, 114. And the same 
rule has been announced elsewhere. State v. Lyons, 144 
Minn. 348, 175 N.W. 689, 691. A feigned accomplice has 
been defined as one who co-operates with view of aiding 
justice to detect a crime. State v. Verganadis, 50 Nev. 1, 
248 P. 900, 903; Decoy not "accomplice". U. S. v. Becker, 
C.C.A.N.Y., 62 F.2d 1007, 1009. 

Liquor control board inspector, Magee v. State, 135 Tex. 
Cr.R. 381, 120 S.W.2d 248, 249. 

ACCORD, n. A satisfaction agreed upon between 
the party injuring and the party injured which, 
when performed, is a bar to all actions upon this 
account. Kromer v. Heim, 75 N.Y. 576, 31 Am. 
Rep. 491; Buob v. Feenaughty Machinery Co., 
191 Wash. 477, 71 P.2d 559, 564. An agreement to 
accept, in extinction of an obligation, something 
different from or less than that to which the per- 
son agreeing to accept is entitled. Whepley Oil 
Co. v. Associated Oil Co., 6 Cal.App. 2d 94, 44 P.2d 
670, 677. 

Substitution of an agreement between the party injur- 
ing and the party injured, in view of the original obliga- 
tion. Barbarich v. Chicago, M., St. P. & P. Ry. Co., 92 
Mont. 1, 9 P.2d 797, 799. 

It may arise both where the demand itself is unliqui- 
dated or in dispute, and where the amount and nature of 
the demand is undisputed, and it is agreed to give and take 
less than the demand. J. F. Morgan Paving Co. v. Carroll, 
211 Ala. 121, 99 So. 640, 641. 

"Payment," as distinguished from accord, means full 
satisfaction. State v. Tyler County State Bank, Tex. Com. 
App., 277 S. W. 625, 627, 42 A.L.R. 1347. 

See Accord and Satisfaction; Compromise and 
Settlement. 

ACCORD, v. In practice. To agree or concur, 
as one judge with another. "I accord." Eyre, 
C. J., 12 Mod. 7. "The rest accorded." 7 Mod. 
361. 

ACCORD AND SATISFACTION. An agreement 
between two persons, one of whom has a right of 
action against the other, that the latter should do 
or give, and the former accept, something in sat- 
isfaction of the right of action different from, and 
usually less than, what might be legally enforced. 
33 



ACCORD 


When the agreement is executed, and satisfaction 
has been made, it is called "accord and satisfac- 
tion." Rogers v. Spokane, 9 Wash. 168, 37 P. 300. 

It is discharge of contract, or of disputed claim arising 
either from contract or from tort, by substitution of agree- 
ment between parties in satisfaction of such contract or 
disputed claim and execution of the agreement. Nelson v. 
Chicago Mill & Lumber Corporation, C.C.A.Ark., 76 F.2d 
17, 100 A.L.R. 87. 

"Accord and satisfaction" results where there is assent 
to acceptance of payment in compromise of dispute, or in 
extinguishment of liability uncertain in amount, or where 
payment, coupled with condition whereby use of money 
will be wrongful if condition is ignored, is accepted. Hud- 
son v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373. 
Regardless of whether claim is liquidated or unliquidated. 
May Bros. v. Doggett, 155 Miss. 849, 124 So. 476, 478. 

Settlement of claims under insurance policies. Lehaney 
v. New York Life Ins. Co., 307 Mich. 125, 11 N.W.2d 830, 
832. 

Accepted amount tendered by insurer as cash surrender 
value of policies. Greenberg v. Metropolitan Life Ins. Co., 
379 111. 421, 41 N.E. 2d 495, 497, 140 A.L.R. 775. 

See, also, Sierra & San Francisco Power Co. v. Uni- 
versal Electric & Gas Co., 197 Cal. 376, 241 P. 76, 80. 

More recently, a broader application of the doctrine has 
been made, where one promise or agreement is set up in 
satisfaction of another. Continental Nat. Bank v. Mc- 
Geoch, 92 Wis. 286, 66 N.W. 606. 

An "accord and satisfaction arises" where parties, by a 
subsequent agreement, have satisfied the former one, and 
the latter agreement has been executed. The execution 
of a new agreement may itself amount to a satisfaction, 
where it is so expressly agreed by the parties ; and with- 
out such agreement, if the new promise is founded on a 
new consideration, in which case the taking of the new 
consideration amounts to the satisfaction of the former 
contract. 

A dispute or controversy is not an essential element of 
some forms of accord and satisfaction, as an accord and 
satisfaction of a liquidated claim by the giving and accept- 
ance of a smaller sum and some additional consideration, 
such as new security, payment of the debt before due, 
payment by a third person, or where property or personal 
services are accepted from an insolvent debtor in satis- 
faction. Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42, 47. 

"Composition settlement" contemplates agreement not 
only between debtor and creditors, but also among credi- 
tors, whereas "accord and satisfaction" is agreement 
between debtor and single creditor. Russell v. Douget, 
La. App., 171 So. 501, 502. 

"Novation" is a species of "accord and satisfaction". 
Munn v. Town of Drakes ville, 226 Iowa 1040, 285 N.W. 644, 
648. 

See Acceptance; Composition; Compromise; 
Novation. 

ACCORDANCE. Agreement; harmony; con- 
cord; conformity. Webster, Diet.; City and 
County of San Francisco v. Boyd, 22 Cal. 2d 685, 
140 P.2d 666, 668. 

An act done .in accordance with a purpose once formed 
is not necessarily an act done in pursuance of such pur- 
pose, for the purpose may have been abandoned before the 
act was done. State v. Robinson, 20 W.Va. 713, 742. A 
charter providing that a city's power of taxation shall be 
exercised "in accordance with" the state Constitution and 
laws means in a manner not repugnant to or in conflict 
or inconsistent therewith. City of Norfolk v. Norfolk 
Landmark Pub. Co., 95 Va. 564, 28 S.E. 959, 960. The 
words "in accordance with this act" as used in N. M. 
Laws 1899, c. 22, § 25, dealing with validity of tax titles, 
was not improperly interpreted as meaning "under this 
act. - Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42, 44, 
58 L.Ed. 168. 

ACCORDANT. Fr. and Eng. Agreeing; con- 
curring. "Baron Parker, accordant, " Hardr. 93; 


"Holt, C. J., accordant," 6 Mod. 299; "Powys, J., 
accord," "Powell, J., accord," Id. 298. 

ACCOUCHEMENT. The act of a woman in giv- 
ing birth to a child. The fact of the accouche- 
ment, which may be proved by the direct testi- 
mony of one who was present, as a physician or 
midwife, is often important evidence in proving 
parentage. 

ACCOUNT. A detailed statement of the mutual 
demands in the nature of debt and credit between 
parties, arising out of contracts or some fiduciary 
relation. Portsmouth v. Donaldson, 32 Pa. 202, 72 
Am. Dec. 782. 

A statement in writing, of debts and credits, or 
of receipts and payments; a list of items of debts 
and credits, with their respective dates. Rens- 
selaer Glass Factory v. Reid, 5 Cow., N.Y., 593. 

An "account" is defined as a statement of pecuniary 
transactions; a record or course of business dealings 
between parties ; a list or statement of monetary transac- 
tions, such as payments, losses, sales, debits, credits, etc., 
in most cases showing a balance or result of comparison 
between items of an opposite nature; and is not held to 
include a liability for unliquidated damages resulting 
from the breach of an entire contract, expressing only 
an entire consideration. Harnischfeger Sales Corporation 
v. Pickering Lumber Co., C.C.A.Mo., 97 F.2d 692, 695. 

The word is sometimes used to denote the balance, or 
the right of action for the balance, appearing due upon a 
statement of dealings ; as where one speaks of an assign- 
ment of accounts ; but there is a broad distinction between 
an account and the mere balance of an account, resembling 
the distinction in logic between the premises of an argu- 
ment and the conclusions drawn therefrom. A balance is 
but the conclusion or result of the debit and credit sides 
of an account. It implies mutual dealings, and the exist- 
ence of debt and credit, without which there could be no 
balance. McWilliams v. Allan, 45 Mo. 574. 

A generic term, difficult to define, having various mean- 
ings, depending somewhat upon the surrounding circum- 
stances and the connection in which it is used. Wolcott 
& Lincoln v. Butler, 155 Kan. 105, 122 P.2d 720, 722, 141 
A. L. R. 356. 

Flexible in meaning, meaning valuation; worth; value. 
Ex parte Means, 200 Ala. 378, 76 So. 294; may refer either 
to past or future indebtedness, Semel v. Braun, 157 N.Y. 
S. 907, 908, 94 Misc. 238; an itemized account, Brooks v. 
International Shoe Co., 132 Ark. 386, 200 S.W. 1027. 

Closed 

An account to which no further additions can 
be made on either side, but which remains stil. 
open for adjustment and set-off, which distinguish- 
es it from an account stated. Mandeville v. Wil- 
son, 5 Cranch 15, 3 L.Ed. 23. 

Current 

An open or running or unsettled account be- 
tween two parties; the antithesis of an account 
stated. See Watson v. Gillespie, 200 N.Y.S. 191, 
198, 205 App.Div. 613; Caffarelli Bros. v. Lyons 
Bros. Co., Tex. Civ. App., 199 S.W. 685, 686; Con- 
tinental Casualty Co. v. Easley, Tex.Civ.App., 290 
S.W. 251,253. 

An "account current" is an active checking account, 
through which credit and debit items are constantly pass- 
ing. In re Fricke's Will, 202 N.Y.S. 906, 912, 122 Misc. 
427. 

All items must constitute one demand. Meyers v. , Bar- 
rett & Zimmerman, 196 Minn. 276, 264 N.W. 769, 773. 


34 



ACCOUNT FOR 


Duties 

Duties payable by the English customs and in- 
land revenue act, 1881, (44 Viet. c. 12, § 38,) on a 
donatio mortis causa, or on any gift, the donor of 
which dies within three months after making it, 
or on joint property voluntarily so created, and 
taken by survivorship, or on property taken under 
a voluntary settlement in which the settlor had a 
life-interest. 

Mutual 

Accounts comprising mutual credits between 
the parties; or an existing credit on one side 
which constitutes a ground for credit on the other, 
or where there is an understanding that mutual 
debts shall be a satisfaction or set-off pro tanto 
between the parties. McConnell v. Arkansas Cof- 
fin Co., 172 Ark. 87, 287 S.W. 1007. 

Open 

An account which has not been finally settled 
or closed, but is still running or open to future ad- 
justment or liquidation. Open account, in legal 
as well as in ordinary language, means an indebt- 
edness subject to future adjustment, and which 
may be reduced or modified by proof. James v. 
Lederer-Strauss 8s Co., 32 Wyo. 377, 233 P. 137, 
139. 

An open account can become an account stated only by 
the debtor's admission of liability, or failure to deny lia- 
bility for a reasonable time after receipt of account. 
Brooks v. White, 187 N. C. 656, 122 S.E. 561. 

Payable 

"Accounts payable" are contract obligations ow- 
ing by a person on open account. West Virginia 
Pulp 8s Paper Co. v. Karnes, 120 S.E. 321, 322, 137 
Va. 714; State Tax Commission v. Shattuck, 38 
P.2d 631, sn, 44 Ariz. 379. 

Public 

The accounts kept by officers of the nation, 
state, or kingdom, of the receipt and expenditure 
of the revenues of the government. 

Rendered 

An account made out by the creditor, and pre- 
sented to the debtor for his examination and ac- 
ceptance. When accepted, it becomes an account 
stated. Freeland v. Cocke, 17 Va. (3 Munf.) 352. 

Settled 

One in which the balance has been in fact paid, 
thereby differing from an account stated. See 
Dempsey v. McGinnis, 219 S.W. 148, 150, 203 Mo. 
App. 494. 

Stated 

The settlement of an account between the par- 
ties, with a balance struck in favor of one of 
them; an account rendered by the creditor, and 
by the debtor assented to as correct, either ex- 
pressly, or by implication of law from the failpre 
to object. Preston v. La Belle View Corporation, 
212 N.W. 286, 288, 192 Wis. 168. 


Monthly statements rendered by bank without deposi- 
tor's objection, Pierce & Garnet v. Live Stock Nat. Bank, 
213 Iowa 1388, 239 N.W. 580, 583. 

Unperformed promise of one party to pay a stated sum. 
Hammond Lumber Co. v. Richardson Building & Lumber 
Co., 209 Cal. 82, 285 P. 851, 853. 

An agreement between 'parties who have had previous 
transactions of a monetary character that all the items of 
the account representing such transactions, and the bal- 
ance struck, are correct, together with a promise, express 
or implied, for the payment of such balance. Pelavin v. 
Fenton, Davis & Boyle, 255 Mich. 680, 239 N.W. 268, 269. 

No particular form is necessary; it may be oral, writ- 
ten, partly oral and partly written. Murphy v. Smith, 26 
Ariz. 394, 226 P. 206, 208. An account stated is not ordi- 
narily recognized in Virginia and West Virginia, except 
as between merchant and merchant, and principal and 
agent, with mutual accounts. Price Hill Colliery Co. v. 
Pinkney, 96 W.Va. 74, 122 S.E. 434, 436. This was also a 
common count in a declaration upon a contract under 
which the plaintiff might prove an absolute acknowledg- 
ment by the defendant of a liquidated demand of a fixed 
amount, which implies a promise to pay on request. It 
might be joined with any other count for a money demand. 
The acknowledgment or admission must have been made 
to the plaintiff or his agent. Wharton. 

ACCOUNT, or ACCOUNT RENDER. In prac- 
tice. "Account," sometimes called "account ren- 
der," was a form of action at common law against 
a person who by reason of some fiduciary relation 
(as guardian, bailiff, receiver, etc.) was bound to 
render an account to another, but refused to do so. 
Portsmouth v. Donaldson, 32 Pa. 202, 72 Am. Dec. 
782; Peoples Finance 8& Thrift Co. of Visalia v. 
Bowman, 137 P.2d 729, 731, .58 Cal. App. 2d 729. 

"Action of account" is common-law action to compel 
person to render account for property or money of another. 
Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 609. Equita- 
ble in nature. Gaines Bros. Co. v. Gaines, 188 Okl. 300, 
108 P.2d 177, 179. 

In England, this action early fell into disuse; and as it is 
one of the most dilatory and expensive actions known to 
the law, and the parties are held to the ancient rules of 
pleading, and no discovery can be obtained, it never was 
adopted to any great extent in the United States. But in 
some states this action was employed, chiefly because there 
were no chancery courts in which a bill for an accounting 
would lie. The action is peculiar in the fact that two 
judgments are rendered, a preliminary judgment that the 
defendant do account with the plaintiff (quod computet) 
and a final judgment (quod recuperet) after the account- 
ing for the balance found due. Field v. Brown, 146 Ind. 
293, 45 N.E. 464, 16 Blatchf. 178. 

ACCOUNT-BOOK. A book kept by a merchant, 
trader, mechanic, or other person, in which are 
entered from time to time the transactions of his 
trade or business. Greenl. Ev. §§ 115-118. 

Volumes bound or sewed together in which accounts are 
regularly kept, and excluding collections of loose and inde- 
terminate memoranda. W. T. Raleigh Co. v. Rotenberry, 
174 Miss. 319, 164 So. 5, 6. May now include modern book 
of detachable leaves, but leaves must be of such appropri- 
ate uniformity of material as reasonably to constitute 
leaves of account book in which they are contained. W. T. 
Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5, 6. 

ACCOUNT COMPUTATIO . The primary idea of 
"account computatio", whether in proceedings of 
courts of law or equity, is some matter of debt 
and credit, or demand in nature thereof. Cole- 
man v. Kansas City, 351 Mo. 254, 173 S.W.2d 572, 
576. 

ACCOUNT FOR. To pay over the money to the 
person entitled thereto. U. S. v. Rehwald, D.C. 
Cal., 44 F.2d 663. 


35 



ACCOUNT IN BANK 


ACCOUNT IN BANK, See Bank Account. 

ACCOUNTABLE. Subject to pay; responsible; 
liable. Where one indorsed a note "A. C. account- 
able," it was held that, under this form of indorse- 
ment, he had waived demand and notice. Furber 
v. Caverly, 42 N.H. 74. 

ACCOUNTABLE RECEIPT. An instrument ac- 
knowledging the receipt of money or personal 
property, coupled with an obligation to account 
for or pay or deliver the whole or some part of it 
to some person. State v. Riebe, 7 N.W. 262, 27 
Minn. 315. 

ACCOUNTANT. One who keeps accounts; a 
person skilled in keeping books or accounts; 
an expert in accounts or bookkeeping. See U. S. 
ex rel. Liebmann v. Flynn, D.C.N.Y., 16 F.2d 1006, 
1007; Frazer v. Shelton, 150 N.E. 696, 701, 320 
111. 253. 

One competent to design and control systems of accounts. 
Roberts v. Hosking, 95 Mont. 562, 28 P.2d 199, 201. 

A person who renders an account: an executor, guard- 
ian, etc. 

ACCOUNTANT GENERAL, or ACCOMPTANT 
GENERAL. An officer of the court of chancery, 
appointed by act of parliament to receive all 
money lodged in court, and to place the same in 
the Bank of England for security. 12 Geo. I. c. 
32; 1 Geo. IV, c. 35; 15 & 16 Viet. c. 87, §§ 18-22, 
39. See Daniell, Ch.Pr. (4th Ed.) 1607 et seq. 
The office, however, has been abolished by 35 & 
36 Viet. c. 44, and the duties transferred to her 
majesty's paymaster general. 

ACCOUNTANTS, CHARTERED. Persons skilled 
in the keeping and examination of accounts, who 
are employed for the purpose of examining and 
certifying to the correctness of accounts of cor- 
porations and others. British Commonwealth 
equivalent of Certified Public Accountant. 

ACCOUNTING. An act or system of making up 
or settling accounts; a statement of account, or 
a debit and credit in financial transactions. Kan- 
sas City v. Burns, 137 Kan. 905, 22 P.2d 444. 

Rendition of an account, either voluntarily or by order 
of a court. Buxton v. Edwards, 134 Mass. 567, 578. In the 
latter case, it imports a rendition of a judgment for the 
balance ascertained to be due. Apple v. Smith, 106 Kan. 
717, 190 P. 8, 10. The term may include payment of the 
amount due. Pyatt v. Pyatt, 46 N.J.Eq. 285, 18 A. 1048. 

ACCOUNTS RECEIVABLE. Contract obligations 
owing to a person on open account. West Vir- 
ginia Pulp & Paper Co. v. Karnes, 137 Va. 714, 
120 S.E. 321, 322; charge accounts, Haverfield Co. 
v. Evatt, 143 Ohio St. 58, 54 N.E.2d 149, 152, in- 
stallment balances, Duke Power Co. v. Hillsbor- 
ough Tp., Somerset County, 20 N.J.Misc. 240, 26 
A.2d 713, 725. 

ACCOUPLE. To unite; to marry. Ne unques 
accouple, never married. 

ACCREDIT. In international law. (1) To ac- 
knowledge; to receive as an envoy in his public 


character, and give him credit and rank accord- 
ingly. Burke. (2) To send with credentials as 
an envoy. Webst.Dict. This latter use is now the 
accepted one. 

ACCREDITED LAW SCHOOL. "An accredited 
law school" and a "law school approved by this 
court," are synonymous. Ex parte State Board 
of Law Examiners of Florida, 141 Fla. 706, 193 
So. 753. 

ACCREDITED REPRESENTATIVE. As respects 
service of process, representative having general 
authority to act. Rorick v. Stilwell, 101 Fla. 4, 
133 So. 609, 615. 

ACCREDULITARE. L. Lat. In old records. 
To purge an offense by oath. Blount; Whishaw. 

ACCRESCERE. In the civil and old English law. 
To grow to; to increase; to pass to, and become 
united with, as soil to land per alluvionem. Dig. 
41, 1, 30, pr. The term is used in speaking of 
islands which are formed in rivers by deposit; 
Calvinus, Lex.; 3 Kent 428. It is used in a re- 
lated sense in the common-law phrase jus accres- 
cendi , the right of survivorship; 1 Washb.R.P. 
426. 

Pleading 

To commence; to arise; to accrue. Quod actio 
non accrevit infra sex anos, that the action did 
not accrue within six years; 3 Chit. PI. 914. 

ACCRETION. The act of growing to a thing; 
usually applied to the gradual and imperceptible 
accumulation of land by natural causes, as out of 
the sea or a river. 

Civil Law 

The right of heirs or legatees to unite or aggre- 
gate with their shares or portions of the estate 
the portion of any co-heir or legatee who refuses 
to accept it, fails to comply with a condition, be- 
comes incapacitated to inherit, or dies before the 
testator. Anderson v. Lucas, 204 S.W. 989, 993, 
140 Tenn. 336. Under a deed of trust: Miller v. 
Douglass, 192 Wis. 486, 213 N.W. 320, 322. 

Mortgages 

As used in a mortgage on cattle, with all in- 
crease thereof and accretions thereto, the word 
"accretions" is not confined to the results of nat- 
ural growth, but includes the additions of parts 
from without, i. e., of cattle subsequently added 
to the herd. Stockyards Loan Co. v. Nichols, 
C.C.A.Okl., 243 F. 511, 513, 1 A.L.R. 547. 

Realty 

Addition of portions of soil, by gradual deposi- 
tion through the operation of natural causes, to 
that already in possession of owner. St. Louis, 
etc., R. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 
L.R.A. 559, 22 Am.St.Rep. 195; 51 L.R.A. 425, n.; 
Willett v. Miller, 176 Okl. 278, 55 P.2d 90, 92. Along 
banks of navigable or unnavigable stream. Smith 
v. Whitney, 105 Mont. 523, 74 P.2d 450, 453, change 
in river boundary, Hancock v. Moore, Tex. Civ. 


36 



ACCRUE 


App., 137 S.W.2d 45, 51, 52. Tideland artificially 
filled was not an "accretion". City of Newport 
Beach v. Fager, 39 Cal. App. 2d 23, 102 P.2d 438, 
442. 

Accretion of land is of two kinds : By alluvion, 1 . e., by 
the washing up of sand or soil, so as to form firm ground; 
or by dereliction, as when the sea shrinks below the usual 
water-mark. The term "alluvion" is applied to deposit 
itself, while "accretion" denotes the act. However, the 
terms are frequently used synonymously. Katz v. Patter- 
son, 135 Or. 449, 296 P. 54, 55. In determining whether 
change in course of river is by "accretion" or "avulsion," 
test is not whether witnesses might see from time to time 
that progress has been made, but whether witnesses could 
perceive change while it was going on. Goins v. Merry- 
man, 183 Okl. 155, 80 P.2d 268, 270. Land uncovered by 
gradual subsidence of water is not an "accretion" but a 
"reliction." Independent Stock Farm v. Stevens, 128 Neb. 
619, 259 N.W. 647, 648. 

Trust Property 

Receipts other than those ordinarily considered 
as income; and ordinary cash dividends, the sole 
income, were not accretions. Doty v. C. I. R., C.C. 
A.l, 148 F.2d 503, 505. 

See Accrue; Avulsion; Alluvion; Reliction. 

ACCROACH. To encroach; to exercise power 
without due authority. In French law, to delay. 
Whishaw. 

To attempt to exercise royal power. 4 Bl.Comm. 76. A 
knight who forcibly assaulted and detained one of the 
king's subjects till he paid him a sum of money was held 
to have committed treason, on the ground of accroach- 
ment. 1 Hale, P.C. 80. 

ACCROCHER. Fr. To delay; retard; put off. 
Accrocher un proces, to stay the proceedings in 
a suit. 

ACCRUAL, CLAUSE OF. See Accruer, Clause of. 

ACCRUAL BASIS. A method of keeping accounts 
which shows expenses incurred and income earned 
for a given period, although such expenses and 
income may not have been actually paid or re- 
ceived in cash. Orlando Orange Groves Co. v. 
Hale, 119 Fla. 159, 161 So. 284. 

Right to receive and not the actual receipt determines 
inclusion of amount in gross income. When right to 
receive an amount becomes fixed, right accrues. H. Liebes 
& Co. v. Commissioner of Internal Revenue, C.C.A.9, 90 
F.2d 932, 937. Obligations payable to or by taxpayer are 
treated as if discharged when incurred. H. Liebes & Co. 
v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932, 
936. Entries are made of credits and debits when liability 
arises, whether received or disbursed. Insurance Finance 
Corporation v. Commissioner of Internal Revenue, C.C.A.3, 
84 F.2d 382. Books showing sales by accounts receivable 
and purchases by accounts payable, and set up inventories 
at beginning and end of year. Consolidated Tea Co. v. 
Bowers, D.C.N.Y., 19 F.2d 382. 

ACCRUE. Derived from the Latin, "ad" and 
"creso," to grow to. In past tense, in sense of 
due and payable; vested. It means to increase; 
to augment; to come to by way of increase; to 
be added as an increase, profit, or damage. Harts- 
field Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693, 695. 
Acquired; fell due; made or executed; matured; 
occurred; received; vested; was created; was 
incurred. H. Liebes & Co. v. Commissioner of 


Internal Revenue, C.C.A.9, 90 F.2d 932, 936. To 
attach itself to, as a subordinate or accessory 
claim or demand arises out of, and is joined to, 
its principal. Lifson v. Commissioner of Internal 
Revenue, C.C.A.8, 98 F.2d 508. 

Produce of money lent. "Interest accrues to principal." 
Weiss v. Commissioners of Land Office, 182 Okl. 39, 75 P.2d 
1142, 1144. Costs accrue to a judgment. 

The term is also used of independent or original 
demands, and then means to arise, to happen, to come into 
force or existence; to vest; as in the phrase, "The right 
of action did not accrue within six years." Amy v. Dubu- 
que, 98 U.S. 470, 476, 25 L. Ed. 228. To 'become a present 
right or demand; to come to pass. H. Liebes & Co. v. 
Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932, 
936. 

It is distinguished from sustain; Adams v. Brown, 4 
Litt. (Ky.) 7; and from owing; Gross v. Partenheimer, 
159 Pa. 556, 28 A. 370; Fay v. Holloran, 35 Barb. (N. Y.) 
295; it is also distinguished from arise; State v. Circuit 
Court of Waushara County, 165 Wis. 387, 162 N.W. 436, 
437. 

Cause of Action 

A cause of action "accrues" when a suit may 
be maintained thereon. Dillon v. Board of Pen- 
sion Com'rs of City of Los Angeles, 18 Cal. 2d 427, 
116 P.2d 37, 39, 136 A.L.R. 800. Whenever one 
person may sue another. Hensley v. Conway, 
Tex.Civ.App., 29 S.W.2d 416, 418. 

Cause of action "accrues," on date that damage is sus- 
tained and not date when causes are set in motion which 
ultimately produce injury. City of Philadelphia v. Lieber- 
man, C.C.A.Pa., 112 F.2d 424, 428. Date of injury. Fred- 
ericks v. Town of Dover, 125 N.J.L. 288, 15 A. 2d 784, 787. 
When actual damage has resulted. National Lead Co. v. 
City of New York, C.C.A.N.Y., 43 F.2d 914, 916. As soon 
as contract is breached. Wichita Nat. Bank v. United 
States Fidelity & Guaranty Co., Tex.Civ.App., 147 S.W.2d 
295, 297. 

Contracts 

The word accrued, as Used in reference to con- 
tracts in which process may be sent out of the 
country to be served, has reference to the place 
where the contract was made and executed. 
Phelps v. McGee, 18 111, 155, 158. 

Taxation 

Income "accrues" to taxpayer when there arises 
to him a fixed or unconditional right to receive it. 
Franklin County Distilling Co. v. Commissioner of 
Internal Revenue, C.C.A.6, 125 F.2d 800, 804, 805. 
But not unless there is a reasonable expectancy 
that the right will be converted into money or its 
equivalent. Swastika Oil 8s Gas Co. v. Commis- 
sioner of Internal Revenue, C.C.A.6, 123 F.2d 
382, 384. 

Where taxpayer makes returns on accrual basis, 
item "accrues" when all events occur which fix 
amount payable and determine liability of tax- 
payer. Hudson Motor Car Co. v. U. S., Ct.Cl., 3 F. 
Supp. 834, 847. 

Tax "accrues" for deduction when all events 
have occurred which fix amount of tax and deter- 
mine liability of taxpayer for it, although there 
has not yet been assessment or maturity. Elm- 
hirst v. Duggan, D.C.N.Y., 14 F.Supp. 782, 784. 

Estate tax "accrued," immediately on death, 
though not payable until one year thereafter. 
Ewbank v. U. S., C.C.A.Ind., 50 F.2d 409. 


37 



ACCRUED 


ACCRUED COMPENSATION. Awarded compen- 
sation, due and payable. Wood Coal Co. v. State 
Compensation Com'r, 119 W.Va. 581, 195 S.E. 528, 
529, 

ACCRUED DEPRECIATION. The lessened serv- 
ice value of the utility plant due to its consump- 
tion in furnishing service. Wisconsin Telephone 
Co. v. Public Service Commission, 232 Wis. 274, 287 
N.W. 122, 152. Portion of useful service life 
which has expired. State ex rel. City of St. Louis 
v. Public Service Commission, 341 Mo. 920, 110 S. 
W.2d 749, 768. 

ACCRUED RIGHT. As used in Constitution, a 
matured cause of action, or legal authority to de- 
mand redress. Morley v. Hurst, 174 Okl. 2, 49 P. 
2d 546, 548. 

ACCRUER (or ACCRUAL), CLAUSE OF. An ex- 
press clause, frequently occurring in the case of 
gifts by deed or will to persons as tenants in 
common, providing that upon the death of one 
or more of the beneficiaries his or their shares 
shall go to the survivor or survivors. Brown. 
The share of the decedent is then said to accrue 
to the others. 

ACCRUING. Inchoate; in process of maturing. 
That which will or may, at a future time, ripen 
into a vested right, an available demand, or an 
existing cause of action. Hartsfield Co. v. Shoal, 
184 Ga. 378, 191 S.E. 693, 695. Arising by way of 
increase, growth or profit. It connotes continuing 
growth, increase or augmentation. Globe Indem- 
nity Co. v. Bruce, C.C.A.Okl., 81 F.2d 143, 153. 

ACCRUING COSTS. Costs and expenses incurred 
after judgment. 

ACCRUING INTEREST. Running or accumulat- 
ing interest, as distinguished from accrued or 
matured interest; interest daily accumulating on 
the principal debt but not yet due and payable. 
Gross v. Partenheimer, 159 Pa. 556, 28 A. 370. 

ACCRUING RIGHT. One that is increasing, en- 
larging, or augmenting. Richards v. Land Co., 
54 F. 209, 4 C.C.A. 290. 

ACCT. An abbreviation for "account," of such 
universal and immemorial use that the courts 
will take judicial notice of its meaning. Heaton 
v. Ainley, 108 Iowa, 112, 78 N.W. 798. 

ACCUMULATED PROFITS. Earned surplus or 
undivided profits. Flint v. Commissioner of Cor- 
porations and Taxation, 43 N.E.2d 789, 791, 792, 312 
Mass. 204. 

Include profits earned and invested. Commissioner of 
Corporations and Taxation v. Filoon, 310 Mass. 374, 38 
N.E.2d 693, 698, 700. 

And they take into account losses, as well as gains. Com- 
missioner of Corporations and Taxation v. Church, Mass., 
61 N.E.2d 143, 145. 

ACCUMULATED SURPLUS. In statutes relative 
to the taxation of corporations, this term refers 
to the fund which the company has in excess of 
its capital arid liabilities. Trenton Iron Co. v. 


Yard, 42 N.J.Law, 357; People's F. Ins. Co. v. 
Parker, 34 N.J.Law, 479, 35 N.J.Law, 575. See 
Earnings. 

ACCUMULATIONS. Increase by continuous or 
repeated additions, or, if taken literally, means 
either profit accruing on sale of principal assets, 
or increase derived from their investment, or 
both. In re Wells' Will, 300 N.Y.S. 1075, 1078, 
165 Misc. 385. 

Adding of interest or income of a fund to prin- 
cipal pursuant to provisions of a will or deed, 
preventing its being expended. In re Watson's 
Will, 258 N.Y.S. 755, 144 Misc. 213. 

When an executor or other trustee masses the rents, 
dividends, and other income which he receives, treats it as 
a capital, invests it, makes a new capital of the income 
derived therefrom, invests that, and so on, he is said to 
accumulate the fund, and the capital and accrued income 
thus procured constitute accumulations. Hussey v. Sar- 
gent, 116 Ky. 53, 75 S.W. 211, In re Rogers' Estate, 179 
Pa. 609, 36 A. 340. See Perpetuity. 

ACCUMULATIVE. That which accumulates, or is 
heaped up; additional. Said of several things 
heaped together, or of one thing added to an- 
other. 

ACCUMULATIVE JUDGMENT. Where a person 
has already been convicted and sentenced, and a 
second or additional judgment is passed against 
him, the execution of which is postponed until the 
completion of the first sentence, such second 
judgment is said to be accumulative. 

As to accumulative "Legacy," see that title. 

ACCUMULATIVE LEGACY. A second, double 
or additional legacy; a legacy given in addition 
to another given by the same instrument, or by 
another instrument. 

ACCUMULATIVE SENTENCE. *A sentence, ad- 
ditional to others, imposed on a defendant who 
has been convicted upon an indictment containing 
several counts, each of such counts charging a 
distinct offense, or who is under conviction at the 
same time for several distinct offenses; one of 
such sentences to begin at the expiration of an- 
other. Carter v. Mclaughiy, 183 U.S. 365, 22 S. 
Ct. 181, 46 L.Ed. 236; State v. Hamby, 126 N.C. 
1066, 35 S.E. 614; Braudon v. Mackey, 122 Kan. 
207, 251 P. 176, 177. 

ACCUSARE NEMO SE DEBET, NISI CORAM 
DEO. No one is bound to accuse himself, except 
before God. See Hardres, 139. 

ACCUSATION. A formal charge against a per- 
son, to the effect that he is guilty of a punishable 
offense, laid before a court or magistrate having 
jurisdiction to inquire into the alleged crime. 
Coplon v. State, 15 Ala.App. 331, 73 So. 225, 228. 
See Accuse. 

"Accusation" is equivalent of "information" at common 
law which is mere allegation of prosecuting officer by 
whom it is preferred. Sutton v. State, 54 Ga.App. 349, 188 
S.E. 60, 62. 

ACCUSATOR POST RATIONABILE TEMPUS 
NON EST AUDIENDUS, NISI SE BENE DE 
OMISSIONE EXCU SAVERIT. Moore, 817. An 
accuser ought not to be heard after the expiration. 


38 



ACOLYTE 


of a reasonable time, unless he can account satis- 
factorily for the delay. 

ACCUSATORY PART. The "accusatory part" of 
an indictment is that part where the offense is 
named. Deaton v. Commonwealth, 220 Ky. 343, 
295 S.W. 167, 168. 

ACCUSE. To bring a formal charge against a 
person, to the effecf that he is guilty of a crime 
or punishable offense, before a court or magis- 
trate having jurisdiction to inquire into the al- 
leged crime. People v. Frey, 112 Mich. 251, 70 N 
W. 548. 

In its popular sense "accusation" applies to all deroga- 
tory charges or imputations, whether or not they relate to 
a punishable legal offense, and however made, whether 
orally, by newspaper, or otherwise. People v. Braman, 30 
Mich. 460. But in legal phraseology, it is limited to such 
accusations as have taken shape in a prosecution. United 
States v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed. 
999. 

ACCUSED. "Accused" is the generic name for 
the defendant in a criminal case, and is more ap- 
propriate than either "prisoner" or "defendant." 

1 Car. &K. 131. 

The person against whom an accusation is made; one 
who is charged with a crime or misdemeanor. See People 
v. Braman, 30 Mich. 468. The term cannot be said to 
apply to a defendant in a civil action; Castle v. Houston, 
19 Kan. 417, 37 Am. Rep. 127; and see Mosby v. Ins. Co., 31 
Gratt. (Va.) 629. 

ACCUSER. The person by whom an accusation 
is made. 

ACCUSTOMED. Habitual; often used; synony- 
mous with usual; Farwell v. Smith, 16 N.J.Law, 
133. 

ACEPHALI. The levelers in the reign of Hen. 
who acknowledged no head or superior. Leges H. 
1; Cowell. Also certain ancient heretics, who ap- 
peared about the beginning of the sixth century, 
and asserted that there was but one substance in 
Christ, and one nature. Wharton; Gibbon, Rom. 
Emp. ch. 47. 

ACEQUIA. A ditch, channel, or canal, through 
which water, diverted from its natural course, is 
conducted, for use in irrigation or other purposes; 
public ditches. Comp.L.N.Mex. tit. 1, c. 1, § 6 
(Comp.St.1929, §1 151-401). 

ACHAT, also ACHATE, ACHATA, ACHET. In 
French law. A purchase or bargain. Cowell. 

It is used in some of our law-books, as well as achetor, 
a purchaser, which in some ancient statutes means pur- 
veyor. Stat. 36 Edw. Ill; Merlin, Rdpert. 

ACHERSET. In old English law. A measure of 
grain, conjectured to have been the same with 
our quarter, or eight bushels. Cowell. 

ACHIEVE SUBJECT MATTER. The English 
equivalent for patentability. Mesta Mach. Co. v. 
Federal Machine & Welder Co., C.C.A.Pa., 110 F. 
2d 479, 480. 

ACKNOWLEDGE. To own, avow, or admit; to 
confess; to recognize one's acts, and assume the 
responsibility therefor. 


ACKNOWLEDGMENT. To "acknowledge" is to 
admit, affirm, declare, testify, avow, confess, or 
own as genuine. Favello v. Bank of America 
Nat. Trust & Savings Ass'n, 24 Cal.App.2d 342, 
74 P.2d 1057, 1058. 

Child 

An avowal or admission that the child is one's 
own; recognition of a parental relation, either by 
a written agreement, verbal declarations or state- 
ments, by the life, acts, and conduct of the parties, 
or any other satisfactory evidence that the rela- 
tion was recognized and admitted. In re Spencer, 
Sur., 4 N.Y.S. 395; In re Hunt's Estate, 33 N.Y.S. 
256, 86 Hun, 232. 

Parents formally acknowledged child during ceremony 
in which both marriage and baptism took place. Cormier 
v. Cormier, 185 La. 968, 171 So. 93, 97, 98. Letter to regis- 
trar of college where child was student. In re Horne's 
Estate, 149 Fla. 710, 7 So.2d 13, 16. 

The "public acknowledgment" of paternity, under Civ. 
Code Cal. § 230, is the opposite of private acknowledg- 
ment, and means the same kind of acknowledgment a 
father would make of his legitimate child. In re Baird's 
Estate, 193 Cal. 225, 223 P. 974, 994. 

Generally 

Implying obligation or incurring responsibility. 
Weyerhaeuser Timber Co. v. Marshall, C.C.A. 
Wash., 102 F.2d 78, 81. 

Act of a person who avows or admits the truth of certain 
facts which, if established, will entail a civil liability upon 
him. Thus, the debtor's acknowledgment of the creditor's 
demand or right of action will toll the statute of limita- 
tions. Ft. Scott v. Hickman, 112 U.S. 150, 163, 5 Sup.Ct. 
56, 28 L.Ed. 636; Letters, Leffek v. Luedeman, 95 Mont. 
457, 27 P.2d 511, 91 A.L.R. 286; Lincoln-AUiance Bank & 
Trust Co. v. Fisher, 286 N.Y.S. 722, 247 App.Div. 465; pay- 
ments, Erskine v. Upham, 56 Cal.App.2d 235, 132 P.2d 219, 
224, 225. McMahan v. Dorchester Fertilizer Co., 184 Md. 
155, 40 A.2d 313, 314. 

Testator's statement to attesting witness. Anthony v. 
College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321, 324. 

Instruments 

Formal declaration before authorized official, 
by person who executed instrument, that it is his 
free act and deed. Jemison v. Howell, 161 So. 
806, 230 Ala. 423, 99 A.L.R. 1511. The certificate 
of the officer on such instrument that it has been 
so acknowledged. Williford v. Davis, 106 Okl. 
208, 232 P. 828, 831. 

Money 

A sum paid in some parts of England by copy- 
hold tenants on the death of their lords, as a 
recognition of their new lords, in like manner as 
money is usually paid on the attornment of ten- 
ants. Called a fine by Blackstone; 2 Bla.Com. 
98. 

Separate Acknowledgment 

An acknowledgment of a deed or other instru- 
ment, made by a married woman, on her exam- 
ination by the officer separate and apart from her 
husband. Hutchinson v. Stone, 79 Fla. 157, 84 
So. 151, 154. 

ACOLYTE. An inferior church servant, who, 
next under the sub-deacon, follows and waits upon 
the priests and deacons, and performs the offices 


39 



ACQUAINTED 


of lighting the candles, carrying the bread and 
wine, and paying other servile attendance. Spel- 
man; Cowell, 

ACQUAINTED. Having personal knowledge of. 
Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. Ac- 
quaintance expresses less than familiarity; In re 
Carpenter's Estate, 94 Cal. 406, 29 P. 1101. It is 
"familiar knowledge"; Wyllis v. Haun, 47 Iowa, 
614; Chauvin v. Wagner, 18 Mo. 531. 

"Acquaintance" expresses less than familiarity; famili- 
arity less than intimacy. Acquaintance springs from oc- 
casional intercourse, familiarity from daily intercourse, 
intimacy from unreserved intercourse; acquaintance, hav- 
ing some knowledge, familiarity, from long habit, inti- 
macy, by close connection. Atkins Corporation v. Tourny, 
6 Cal. 2d 206, 57 P.2d 480, 483. To be "personally 
acquainted with," and to "know personally," are equiva- 
lent terms; Kelly v. Calhoun, 95 U.S. 710, 24 L.Ed. 544. 
When used with reference to a paper to which a certificate 
or affidavit is attached, it indicates a substantial knowl- 
edge of the subject-matter thereof. Bohan v. Casey, 5 Mo. 
App. 101. 

ACQUEREUR. In French and Canadian law. 
One who acquires title, particularly to immovable 
property, by purchase. 

ACQUEST. An estate acquired newly, or by pur- 
chase. 1 Reeve, Eng. Law, 56. 

ACQUITS. In the civil law. Property which has 
been acquired by purchase, gift, or otherwise than 
by succession. Immovable property which has 
been acquired otherwise than by succession. Merl. 
Repert. 

Profits or gains of property, as between husband and 
wife. Civil Code La. art. 2402. The profits of all the 
effects of which the husband has the administration and 
enjoyment, either of right or in fact, of the produce of the 
joint industry of both husband and wife, and of the 
estates which they may acquire during the marriage, 
either by donations made jointly to them both, or by pur- 
chase, or in any other similar way, even though the pur- 
chase be only in the name of one of the two, and not of 
both. See Community; Conquets. 

ACQUIESCE. To give an implied consent to a 
transaction, to the accrual of a right, or to any 
act, by one's mere silence, or without express 
assent or acknowledgment., Scott v. Jackson, 89 
Cal. 258, 26 P. 898. 

ACQUIESCENCE. Conduct recognizing the ex- 
istence of a transaction, and intended, in some 
extent at least, to carry the transaction, or permit 
it to be carried, into effect; it is some act, not 
deliberately intended to ratify a former transac- 
tion known to be voidable, but recognizing the 
transaction as existing, and intended, in some ex- 
tent at least, to carry it into effect, and to obtain 
or claim the benefits resulting from it, and thus 
differs from "confirmation," which implies a de- 
liberate act, intended to renew and ratify a trans- 
action known to be voidable. De Boe v. Prentice 
Packing & Storage Co., 172 Wash. 514, 20 P.2d 
1107,1110. 

Passive compliance or satisfaction ; distinguished from 
avowed consent on the one hand, and, on the other, from 
opposition or open discontent. Paul v. Western Distribut- 
ing Co., 142 Kan. 816, 52 P.2d 379, 387. Acquiescence from 
which assent: may be reasonably inferred. Frank v. Wilson 
& Co., 24 Del.Ch. 237, 9 A. 2d 82, 86. Equivalent to assent 
inferred from silence with knowledge or from encourage- 


ment and presupposes knowledge and assent. Andrew v. 
Rivers, 207 Iowa 343, 223 N.W. 102, 105. Imports tacit con- 
sent, concurrence, acceptance or assent. Natural Soda 
Products Co. v. City of Los Angeles, Cal. App., 132 P.2d 
553, 563. A silent appearance of consent. Worcester, 
Diet. Darnell v. Bidwell, 115 Me. 227, 98 A. 743, 745, 5 A.L. 
R. 1320. Failure to make any objections. Scott v. Jackson, 
89 Cal. 258, 26 P. 898. Submission to an act of which one 
had knowledge. See Pence v. Langdon, 99 U.S. 578, 25 
L.Ed. 420. It imports full knowledge. Rabe v. Dunlap, 
51 N.J.Eq. 40, 25 A. 959. Knowledge without objection. 
Indiana Harbor Belt R. Co. v. Jones, 220 Ind. 139, 41 
N.E.2d 361, 363. 

It is to be distinguished from avowed consent, on the 
one hand, and from open discontent or opposition, on the 
other. 

It arises where a person who knows that he is entitled 
to impeach a transaction or enforce a right neglects to do 
so for such a length of time that, under the circumstances 
of the case, the other party may fairly infer that he has 
waived or abandoned his right. Norfolk & W. R. Co. v. 
Perdue, 40 W.Va. 442, 21 S.E. 755. 

Acquiescence and laches are cognate but not equivalent 
terms. The former is a submission to, or resting satisfied 
with, an existing state of things, while laches implies a 
neglect to do that which the party ought to do for his own 
benefit or protection. Hence laches may be evidence of 
acquiescence. Laches Imports a merely passive assent, 
while acquiescence implies active assent. In re Wilbur's 
Estate, 334 Pa. 45, 5 A.2d 325, 331. "Acquiescence" relates 
to inaction during performance of an act while "inches" 
relates to delay after act is done. Bay Newfoundland Co. 
v. Wilson & Co., 24 Del.Ch. 30, 4 A.2d 668, 671, 673. "Acqui- 
escence" is synonymous with "abandonment" ; Sclawr v. 
City of St. Paul, 132 Minn. 238, 156 N.W. 283, 284, and is 
distinguished from "admission" ; Saunders v. Busch- 
Everett Co., 138 La. 1049, 71 So. 153, 154; and from "ratifi- 
cation" and "estoppel in pais" ; Marion Sa y . Bank v. 
Leahy, 200 Iowa 220, 204 N.W. 456, 458; but see Murray v. 
Smith, 152 N.Y:S. 102, 108, 166 App.Div. 528; differs from 
"confirmation", in that confirmation implies a deliberate 
act, intended to renew and ratify a transaction known to 
be voidable, Bauer v. Dotterer, 202 Ark. 1055, 155 S.W.2d 
54, 57. A form of "equitable estoppel", Schmitt v. Wright, 
317 111. App. 384, 46 N.E.2d 184, 192. 

See Admission; Confession; Ratification, 


ACQUIESCENCE, ESTOPPEL BY. Acquiescence 
is a species of estoppel. Bankers' Trust Co. v. 
Rood, 211 Iowa, 289, 233 N.W. 794, 802, 73 A.L.R. 
1421. 

An estoppel arises where party aware of his rights sees 
other party acting upon mistaken notion of his rights. 
Minear v. Keith Furnace Co., Iowa, 239 N.W. 584, 587. 
Injury accruing from one's acquiescence in another's action 
to his prejudice creates "estoppel". Lebold v. Inland 
Steel Co., C.C.A.I11., 125 F.2d 369, 375; Passive conduct on 
the part of one who has knowledge of the facts may be 
basis of estoppel. Winslow v. Burns, 47 N.M. 29, 132 P.2d 
1048, 1050. 

It must appear that party to be estopped was bound in 
equity and good conscience to speak and that party claim- 
ing estoppel relied upon acquiescence and was misled 
thereby to change his position to his prejudice. Sherlock 
v. Greaves, 106 Mont. 206, 76 P.2d 87, 91. 

Acquiescence in a judgment in order to constitute an 
estoppel must be unqualified. Messer v. Henlein, 72 N.D. 
63, 4 N.W. 2d 587, 589. One who stands by while his 
property is sold is "estopped" from setting up title against 
purchaser. Meadows v. Hampton Live Stock Commission 
Co., 55 Cal.App.2d 634, 131 P.2d 591, 592, 593. 

The doctrine is applicable only where there is some ele- 
ment of turpitude or neglect. City of Lafayette v. Keen, 
1 13 Ind. App. 552, 48 N.E.2d 63, 70. 

ACQUIETANDIS PLEGIIS. A writ of justices, 
formerly lying for the surety against a creditor 
who refuses to acquit him after the debt has been 
satisfied. Reg. of Writs 158; Cowell; Blount. 


40 



ACQUITTAL 


ACQUIRE. To gain by any means, usually by 
one's own exertions; to get as one's own; to ob- 
tain by search, endeavor, practice, or purchase; 
receive or gain in whatever manner; come to 
have. Clarno v. Gamble-Robinson Co., 190 Minn. 
256, 251 N.W. 268, 269. 

In law of contracts and of descents, to become owner of 
property; to make property one's own. Crutchfield v. 
Johnson & Latimer, 243 Ala. 73, 8 So. 2d 412. To gain 
ownership of. Commissioner of Insurance v. Broad Street 
Mut. Casualty Ins. Co., 312 Mass. 261, 44 N.E.2d 683, 684. 
Broad meaning including both purchase and construction; 
acquisition being the act of getting or obtaining some- 
thing which may be already in existence, or may be 
brought into existence through means employed to acquire 
it. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133, 
140. Sometimes used in the sense of "procure," Jolly v. 
McCoy, 36 Cal.App. 479, 172 P. 618, 619. It does not nec- 
essarily mean that title has passed, Godwin v. Tuttle, 70 
Or. 424, 141 P. 1120, 1122. Includes taking by devise, U. S. 
v. Merriam, 263 U.S. 179. 44 S.Ct. 69, 70 68 L.Ed. 240, 29 
A. L. R. 1547. 

ACQUIRED. To get, procure, secure, acquire. 
Jones v. State, 126 Tex.Cr.R. 469, 72 S.W.2d 260, 
263. 

Coming to an intestate in any other way than by gift, 
devise, or descent from a parent or the ancestor of a par- 
ent. In re Miller's Will, 2 Lea (Tenn.) 54. 

ACQUIRED RIGHTS. Those which a man does 
not naturally enjoy, but which are owing to his 
own procurement, as sovereignty, or the right of 
commanding, or the right of property. Borden v. 
State, 11 Ark. 519, 527, 44 Am.Dec. 217. 

ACQUIRER TAX. German estate inheritance leg- 
acy tax, not true inheritance or legacy tax, im- 
posed upon recipient, and not affecting executors. 
In re Gotthelfs Will, 273 N.Y.S. 247, 152 Misc. 309. 

ACQUISITION. The act of becoming the owner 
of certain property; the act by which one ac- 
quires or procures the property in anything. State 
ex rel. Fisher v. Sherman, 135 Ohio St. 458, 21 N. 
E.2d 467, 470. Used also of the thing acquired. 
Hartigan v. City of Los Angeles, 170 Cal. 313, 
149 P. 590, 592. Taking with, or against, consent. 
Scribner v. Wikstrom, 93 N.H. 17, 34 A. 2d 658, 
660. Especially a material possession obtained by 
any means. Jones v. State, 126 Tex.Cr.R. 469, 72 
S.W.2d 260, 263. 

Original acquisition is that by which a man secures a 
property in a thing which is not at the time he acquires 
it, and in its then existing condition, the property of any 
other individual. It may result from occupancy; 2 Kent, 
289; accession; 2 Kent, 293; intellectual labor — namely, 
for inventions, which are secured by patent rights; and 
for the authorship of books, maps, and charts, which is 
protected by copyrights; 1 Bouv.Inst. 508, n. 

Derivative acquisitions are those which are procured 
from others. Goods and chattels may change owners by 
act of law in the cases of forfeiture, succession, marriage, 
judgment, insolvency, and intestacy; or by act of the 
parties, as by gift or sale. 

An acquisition may result from the act of the party him- 
self, or those who are in his power acting for him, as his 
children while minors; Gale v. Parrot, 1 N.H. 28. See 
Dig. 41. 1. 53; Inst. 2. 9. 3. 

See Accession. 

ACQUIT. To set free, release or discharge as 
from an obligation, burden or accusation. Com- 
monwealth v. Benson, 94 Pa. Super. 10, 15. To ab- 


solve, one from an obligation or a liability; or to 
legally certify the innocence of one charged with 
crime. Dolloway v. Turrill, 26 Wend.N.Y. 383, 
400. 

ACQUIT A CAUTION. The certificate proving 
receipt of security that goods shipped from one 
French port to another shall not be sent to a 
foreign country. Argles, Fr. Merc. Law, 543. 

ACQUIT BACK. In mineral deed, vested in the 
grantee the title to such mineral rights as grantor 
had at time of execution of deed, where grantor 
had received his title from grantee and the ex- 
pression was intended to reconvey such title. Al- 
len v. Boykin, 199 Miss. 417, 24 So.2d 748, 750. 

ACQUITMENT. See Absolution, 

ACQUITTAL. 

Contracts 

A release, absolution, or discharge from an ob- 
ligation, liability, or engagement. 

According to Lord Coke, there are three kinds of acquit- 
tal, namely : by deed, when the party releases the obliga- 
tion; by prescription; by tenure; Co. Litt. 100 a. 

Crimes 

The legal and formal certification of the inno- 
cence of a person who has been charged with 
crime; a deliverance or setting free a person 
from a charge of guilt. 

In a narrow sense, it is the absolution of a party accused 
on a trial before a traverse jury. Thomas v. De Graf- 
fenreid, 2 Nott & McC. (S. C.) 143. Properly speaking, 
however, one is not acquitted by the jury but by the judg- 
ment of the court. People v. Rogers, 170 N.Y.S. 86, 87, 
102 Misc. 437. And he may be legally acquitted by a judg- 
ment rendered otherwise than in pursuance of a verdict, 
as where he is discharged by a magistrate because of the 
insufficiency of the evidence, or the indictment is dismissed 
by the court or a nol. pros, entered. State v. Hart, 90 N.J. 
Law 261, 101 A. 278. But. compare State v. Smith, 170 N.C. 
742; 87 S.E. 98, 99. 

"Nol. pros." not equivalent of "acquittal." Bolton v. 
State, 166 Miss. 290, 146 So. 453, 454. The unnecessary dis- 
charge of the jury without the consent of the accused after 
it has been sworn may constitute an acquittal. Riley v. 
Commonwealth, 190 Ky. 204, 227 S. W. 146, 147. Acquittal 
discharges from guilt, pardon only from punishment. 
Younger v. State, 2 W.Va. 579, 98 Am.Dec. 791. 

It may occur even though the question of guilt or inno- 
cence has never been submitted to a jury, as where a 
defendant, having been held under an indictment or infor- 
mation, is discharged because not brought to trial within 
the time provided by the Criminal Code. State v. Taylor, 
130 Kan. 813, 288 P. 731, 732. 

Acquittals in fact are those which take place when the 
jury, upon trial, finds a verdict of not guilty. 

Acquittals in lauj are those which take place by mere 
operation of law; as where a man has been charged 
merely as an assessory, and the principal has been acquit- 
ted. 2 Co. Inst. 364. Compare State v. Walton, 186 N.C. 
485, 119 S.E. 886, 888. 

See Jeopardy; Autrefois Acquit; Convict. 

Feudal Law 

The obligation on the part of a mesne lord to 
protect his tenant from any claims, entries or 
molestations by lords paramount arising out of 
the services due to them by the mesne lord. See 
Co. Litt. 100a. 


41 



ACQUITTANCE 


ACQUITTANCE. A written discharge, whereby 
one is freed from an obligation to pay money or 
perform a duty. It differs from a release in not 
requiring to be under seal. Pothier, Oblig. n. 781. 
See Milliken v. Brown, 1 Rawle (Pa.) 391. 

This word, though perhaps not strictly speaking synon- 
ymous with "receipt," includes it. A receipt is one form 
of an acquittance; a discharge is another. A receipt in 
full is an acquittance, and a receipt for a part of a demand 
or obligation is an acquittance pro tanto. State v. Shel- 
ters, 51 Vt. 104, 31 Am. Rep. 679. 

ACQUITTED. Released; absolved; purged of an 
accusation; judicially discharged from accusation; 
released from debt, etc. Includes both civil and 
criminal prosecutions. Dolloway v. Turrill, 26 
Wend. (N.Y.) 383, 399. See Acquittal. 

ACRE. A quantity of land containing 160 square 
rods of land, in whatever shape. Serg. Land Laws 
Pa. 185; Cro.Eliz. 476, 665; 6 Coke 67; Poph. 55; 
Co.Litt. 5b. 

Originally the word "acre" facer, aker, or Sax, cecer) 
was not used as a measure of land, or to signify any 
determinate quantity of land, but to denote any open 
ground, (latum quantumvis agrum,) wide champaign, or 
field; which is still the meaning of the German acker, 
derived probably from the same source, and is preserved 
in the names of some places in England, as Castle Acre, 
South Acre, etc. Burrill. Originally a strip in the fields 
that was ploughed in the forenoon. Maitland, Domesday 
and Beyond, 387. 

ACRE FOOT. 325,850 gallons, or the amount of 
water which will cover one acre one foot in depth. 
Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251, 
258. 

ACRE RIGHT. "The share of a citizen of a New 
England town in the common lands. The value 
of the acre right was a fixed quantity in each 
town, but varied in different towns. A 10-acre lot 
or right in a certain town was equivalent to 1 1 3 
acres of upland and 1 2 acres of meadow, and a 
certain exact proportion was maintained between 
the acre right and salable lands." Messages, etc., 
of the Presidents, Richardson, X, 230. 

ACREFIGHT, or ACRE. A camp or field fight; 
a sort of duel, or judicial combat, anciently fought 
by single combatants, English and Scotch, between 
the frontiers of the two kingdoms with sword 
and lance. Called "campfight," and the com- 
batants "champions," from the open "acre" or 
field that was the stage of trial. Cowell. 

ACROMIAL PROCESS. A point in the region of 
the shoulder about where the arm joins or fits into 
the shoulder blade. Muskogee Electric Traction 
Co. v. Mueller, 39 Okl. 63, 134 P. 51, 52. 

ACROSS. From side to side. Transverse to the 
length of. Hannibal 8s St. J. R. Co. v. Packet Co., 
8 S.Ct. 874, 125 U.S. 260, 31 L.Ed. 731; but see 
Appeal of Bennett's Branch Imp. Co., 65 Pa. 242. 
It may mean over, Brown v. Meady, 10 Me. 391, 
25 Am. Dec. 248; or "upon and along," Mt. Vernon 
Telephone Co. v. Franklin Farmers' Co-op. Tele- 
phone Co., 113 Me. 46, 92 A. 934, 935, Ann.Cas. 
1917B, 649; or "upon," Jefferson County v. Louis- 
ville 8s I. R. Co., 160 S.W. 502, 504, 155 Ky. 810; 
or "within," Quanah, A. 8s P. Ry. Co. v. Cooper, 


Tex.Civ.App., 236 S.W. 811, 812. See Comstock v. 
Van Deusen, 5 Pick. (Mass.) 163, where a grant of 
a right of way across a lot of land was held not 
to mean a right to enter at one side, go partly 
across and come out at a place on the same side. 
And compare Brooklyn Heights R. Co. v. Steers, 
106 N.E. 919, 920, 213 N.Y. 76; but see Holley v. 
State, 9 Ala.App. 33, 63 So. 738. 

ACT, v. In Scotch practice. To do or perform 
judicially; to enter of record. Surety "acted in 
the Books of Adjournal." 1 Broun, 4. 

ACT, n. Denotes affirmative; expression of will, 
purpose; carries idea of performance; primarily 
that which is done or doing; exercise of power, 
or effect of which power exerted is cause; a per- 
formance; a deed. Brown v. Standard Casket 
Mfg.*Co., 234 Ala. 512, 175 So. 358, 364. 

In its most general sense, this noun signifies something 
done voluntarily by a person; the exercise of an individ- 
ual's power ; an effect produced in the external world by 
an exercise of the power of a person objectively, prompted 
by intention, and proximately caused by a motion of the 
will. Herman v. Pan American Life Ins. Co., 183 La. 1045, 
165 So. 195, 200. In a more technical sense, it means some- 
thing done voluntarily by a person, aria of such a nature 
that certain legal consequences attach to it. Jefferson 
Standard Life Ins. Co. v. Myers, Tex.Com.App., 284 S.W. 
216, 218. Thus a grantor acknowledges the conveyance to 
be his "act and deed," the terms being synonymous. It 
May denote something done by an individual, as a private 
citizen, or as an officer ; or by a body of men, as a legis- 
lature, a council, or a court of justice; including not 
merely physical acts, but also decrees, edicts, laws, judg- 
ments, resolves, awards, and determinations. Some gen- 
eral laws made by the Congress of the United States are 
styled joint resolutions, and these have the same force and 
effect as those styled acts. But see Decher v. Vaughan, 209 
Mich. 565, 177 N.W. 388, 392. Carries idea of performance. 
Edmonds v. Shirley, 22 Ala.App. 398, 116 So. 303. 

An instrument in writing to verify facts. Web- 
ster, Diet. 

It is used in this sense of the published acts of assembly, 
congress, etc. In a sense approaching this, it has been 
held in trials for treason that letters and other written 
documents were acts; 1 Fost.Cr.Cas. 198; 2 Stark. 116. 

Act indicates the intention. 8 Co. 146b; Broom, 
Max. 301. 

Civil Law 

An act is a writing which states in a legal form 
that a thing has been said, done, or agreed. Merl. 
Repert. 

Acts under private signature are those which have been 
'made by private individuals under their hands. 

Private acts are those made by private persons as regis- 
ters in relation to their receipts and expenditures, sched- 
ules, acquittances, and the like. 

Public acts are those which have a public authority, and 
which have been made before public officers, are author- 
ized by a public seal, have been made public by the author- 
ity of a magistrate, or which have been extracted and been 
properly authenticated from public records. 

Legislation 

A written law, formally ordained or passed by 
the legislative power of a state, called in England 
an "act of parliament," and in the United States 
an "act of congress," or of the "legislature;" a 
statute. People v. Tiphaine, 3 Parker, Cr.R. (N. 
Y.) 241; United States v. Smith, 27 Fed.Cas. 1167. 


42 



ACT OF GOD 


The words bill and law are frequently used synony- 
mously with act, People v. City of Buffalo, 161 N.Y.S. 706, 
712, 175 App.Div. 218, but incorrectly; Sedgwick County 
Com'rs v. Bailey, 13 Kan. 600; a bill being only the draft 
or form of the act presented to the legislature but not 
enacted; Southwark Bank v. Corn., 26 Pa. 446. "Act" 
does not include ordinances or regulations made by local 
authorities, or even statutes having only a local applica- 
tion; People v. City of Buffalo, 157 N.Y.S. 938, 940, 93 
Misc. 275; although sometimes used interchangeably with 
"measure" and "law" ; Whittemore v. Terral, 140 Ark. 
493, 215 S.W. 686, 687. Generally, the word refers to entire 
statute enacted, rather than to a section. Board of Trus- 
tees of Firemen's Relief and Pension Fund of City of 
Muskogee v. Templeton, 184 Okl. 281, 86 P.2d 1000, 1002. 

Acts are either public or private. Public acts (also 
called general acts, or general statutes, or statutes at 
large) are those which relate to the community generally, 
or establish a universal rule for the governance of the 
whole body politic. Private acts (formerly called special, 
Co. Lift. 126a) are those which relate either to particular 
persons (personal acts) or to particular places (local acts), 
or which operate only upon specified individuals or their 
private concerns. Unity v. Burrage, 103 U.S. 454, 26 L.Ed. 
465. Public acts are those which concern the whole com- 
munity and of which courts of law are bound to take 
judicial notice. Sasser v. Martin, 101 Ga. 447, 29 S.E. 278. 

A "special" or "private" act is one operating only on 
particular persons and private concerns; a "local act" is 
one applicable only to a particular part of the legislative 
jurisdiction. Trumper v. School Dist. No. 55 of Mussel- 
shell County, 55 Mont., 90, 173 P. 946, 947. 

To denote an avowal of criminal acts, or the concession 
of the truth of a criminal charge, the word "confession" 
seems more appropriate. 

Practice 

Anything done by a court and reduced to writ- 
ing; a decree, judgment, resolve, rule, order, or 
other judicial proceeding. In Scotch law, the 
orders and decrees of a court, and in French and 
German law, all the records and documents in an 
action, are called "acts." 

Scotch Practice 

An abbreviation of actor, (proctor or advocate, 
especially for a plaintiff or pursuer,) used in 
records. "Act. A. Alt. B." an abbreviation of 
Actor, A. Alter, B.; that is, for the pursuer or 
plaintiff, A., for the defender, B. 1 Broun, 336, 
note. 

ACT BOOK. In Scotch practice. The minute book 
of a court. 1 Swin. 81. 

ACT IN PAIS. An act done out of court, and not 
a matter of record. A deed or an assurance 
transacted between two or more private persons 
in the country, that is, according to the old com- 
mon law, upon the very spot to be transferred, is 
matter in pais. 2 Bl.Comm. 294. 

ACT OF ATTAINDER. A legislative act, attaint- 
ing a person. See Attainder. 

ACT OF BANKRUPTCY. Any act which renders 
a person liable to be proceeded against as a bank- 
rupt, or for which he may be adjudged bankrupt. 

These acts are usually defined and classified in statutes 
on the subject. Duncan v. Landis, C.C.A.Pa., 106 Fed. 839, 
45 C.C.A. 666; In re Chapman, D.C., 99 Fed. 395. Such as: 
insolvency or suffering or permitting a creditor to obtain 
a preference, Von Segerlund v. Dysart, C.C.A. Cal., 137 F.2d 
755, 758, 761; appointment of a receiver, United States v. 
Emory, 62 S.Ct. 317, 319, 314 U.S. 423, 86 L.Ed. 315; hin- 


dering, delaying or defrauding creditors, 7n re Thompson, 
D.C.La., 28 F.Supp. 707, 710; failure to discharge a lien, 
In re Flushing Queensboro Laundry, C.C.A.N.Y., 90 F.2d 
60 1 . Permitting creditor to obtain any levy, attachment, 
judgment, or other lien, In re Day, D.C.Md., 22 F.Supp. 
946, 949; assignment for benefit of creditors, In re Roy, D. 
C.N.H., 46 F.Supp. 952, 954; or a written admission of one's 
inability to pay his debts, In re Turner, D.C.Ky., 51 F. 
Supp. 740, 743. 

ACT OF CURATORY. In Scotch law. The act ex- 
tracted by the clerk, upon any one's acceptance 
of being curator. Forb.Inst. pt. 1, b. 1, c. 2, tit. 2. 
2 Karnes, Eq. 291. Corresponding with the order 
for the appointment of a guardian, in English and 
American practice. 

ACT OF ELIZABETH. See Act of Supremacy. 

ACT OF GOD. An act occasioned exclusively by 
violence of nature without the interference of any 
human agency. It means a natural necessity pro- 
ceeding from physical causes alone without the 
intervention of man. It is an act, event, happen- 
ing, or occurrence, a disaster and effect due to 
natural causes and inevitable accident, or disaster; 
a natural and inevitable necessity which implies 
entire exclusion of all human agency which op- 
erates without interference or aid from man and 
which results from natural causes and is in no 
sense attributable to human agency. It is an acci- 
dent which could not have been occasioned by 
human agency but proceeded from physical causes 
alone. Short v. Kerr, 104 Ind.App. 118, 9 N.E.2d 
114,118. 

In the civil law, vis major. Any misadventure or cas- 
ualty is said to be caused by the "act of God" when it 
happens by the direct, immediate, and exclusive operation 
of the forces of nature, uncontrolled or uninfluenced by 
the power of man and without human intervention, and 
is of such a character that it could not have been pre- 
vented or escaped from by any amount of foresight or 
prudence, or by any reasonable degree of care or dilli- 
gence, or by the aid of any appliances which the situation 
of the party might reasonably require him to use. Inevit- 
able accident, or casualty; any accident produced by any 
physical cause which is irresistible, such as lightning, 
tempests, perils of the seas, an inundation, or earthquake; 
and also the sudden illness or death of persons. People v. 
Tubbs, 37 N.Y. 586; Central of Georgia Ry. Co. v. Hall, 
124 Ga. 322, 52 S.E. 679, 4 L.R.A.,N.S., 898, 110 Am.St.Rep. 
170, 4 Ann. Cas. 128. Story, Bailm. §§ 25, 511; 2 Bl.Comm. 
122. Inevitable accident or casualty. Noel Bros. v. Texas 
& P. Ry. Co., 16 La.App. 622, 133 So. 830, 832; not pre- 
ventable by human care, skill, or foresight, but resulting 
from natural causes, The Empress of France, D.C.N.Y., 49 
F.2d 291. Misfortunes and accidents arising from inevita- 
ble necessity which human prudence could not foresee or 
prevent. Pleasure Beach Park Co. v. Bridgeport Dredge & 
Dock Co., 116 Conn. 496, 165 A. 691, 692. Limited, v. 
Lehigh Valley R. Co., D.C.N.Y., 254 F. 351, 353, a landside 
in the Panama Canal, Gans S. S. Line v. Wilhelmsen, C.C. 
A.N.Y., 275 F. 254, 261, and changes in the styles of wear- 
ing apparel, Rosenblatt v. Winstanley, Mo.App., 186 S.W. 
542, 543, are not "acts of God" ; otherwise, however, as to 
a strike, accompanied with violence and intimidation, see 
Southern Cotton Oil Co. v. Louisville & N. R. Co., 15 
Ga.App. 751, 84 S.E. 198, 199. 

The term is sometimes defined as equivalent to inevita- 
ble accident; Neal v. Saunderson, 2 Sm. & M. (Miss.) 572, 
41 Am. Dec. 609; Central of Georgia Ry. Co. v. Council 
Bros., 36 Ga.App. 573, 137 S.E. 569, 570 (see, however, Can- 
non v. Hunt, 113 Ga. 509, 38 S.E. 983; Harmony Grove 
Telephone Co. v. Potts, 24 Ga.App. 178, 100 S.E. 236, but 
incorrectly, as there is a distinction between the two; 
Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 P. 
334, 335. Bolton v. Burnett, 5 Blackf. (Ind.) 222. 

See Inevitable Accident; Perils of the Sea. 


43 



ACT OF GOVERNMENT 


ACT OF GOVERNMENT. The usual name of 
Cromwell's Constitution vesting the supreme 
power in a Protector and two houses of Parlia- 
ment, passed March 25, 1657. 

ACT OF GRACE. In Scotch law. A term ap- 
plied to the act of 1696, c. 32, by which it was pro- 
vided that where a person imprisoned for a civil 
debt is so poor that he cannot aliment [maintain] 
himself, and will make oath to that effect, it shall 
be in the power of the magistrates to cause the 
creditor by whom he is incarcerated to provide 
an aliment for him, or consent to his liberation; 
which, if the creditor delay to do for 10 days, the 
magistrate is authorized to set the debtor at 
liberty. Bell. The term is often used to designate 
a general act of parliament, originating with the 
crown, such as has often been passed at the com- 
mencement of a new reign, or the coming of age 
or marriage of a sovereign, or at the close of a 
period of civil troubles, declaring pardon or am- 
nesty to numerous offenders. Abbott. 

ACT OF HONOR. When a bill has been protested, 
and a third person wishes to take it up, or accept 
it, for honor of one or more of the parties, the 
notary draws up an instrument, . evidencing the 
transaction, called by this name. 

ACT OF INDEMNITY. A statute by which those 
who have committed illegal acts which subject 
them to penalties are protected from the conse- 
quences of such acts. 

ACT OF INSOLVENCY. Within the meaning of 
the national currency act, an act which shows a 
bank to be insolvent, such as nonpayment of its 
circulating notes, bills of exchange, or certificates 
of deposit; failure to make good the impairment 
of capital, or to keep good its surplus or reserve; 
in fact, any act which shows that the bank is 
unable to meet its liabilities as they mature, or to 
perform those duties which the law imposes for 
the purpose of sustaining its credit. Hayden v. 
Chemical Nat. Bank, C.C.A.N.Y., 84 Fed. 874, 28 
C.C.A. 548; Kullman & Co. v. Woolley, C.C.A. 
Miss., 83 F.2d 129, 132; Garvin v. Chadwick Real- 
ty Corporation, 212 Ind. 499, 9 N.E.2d 268, 271. 

ACT OF LAW. The operation of fixed legal rules 
upon given facts or occurrences, producing conse- 
quences independent of the design or will of the 
parties concerned; as distinguished from "act of 
parties." Also an act performed by judicial au- 
thority which prevents or precludes a party from 
fulfilling a contract or other engagement. Met- 
calf v. State, 57 Okl. 64, 156 P. 305, 306, L.R.A. 
1916E, 595. 

ACT OF PARLIAMENT. A statute, law, or edict, 
made by the British sovereign, with the advice 
and consent of the lords spiritual and temporal, 
and the commons, in parliament assembled. Acts 
of parliament form the leges scriptce, e., the 
written laws of the kingdom. 

ACT OF PROVIDENCE. An accident against 
which ordinary skill and foresight could not 


guard. McCoy v. Dan/ey, 20 Pa. 91, 57 Am. Dec. 
680. Equivalent to "act of God," see supra. 

ACT OF SALE. In Louisiana law. An official 
record of a sale of property, made by a notary 
who writes down the agreement of the parties as 
stated by them, and which is then signed by the 
parties and attested by witnesses. Hodge v. 
Palms, Mich., 117 Fed. 396, 54 C.C.A. 570. 

ACT OF SETTLEMENT. The statute (12 & 13 
Wm. Ill, c. 2) limiting the crown to the Princess 
Sophia of Hanover, and to the heirs of her body 
being Protestants. 1 Bla.Com. 128; 2 Steph.Com. 
290. One clause of it made the tenure of judges' 
office for life or good behavior independent of the 
crown. 

ACT OF STATE. An act done by the sovereign 
power of a country, or by its delegate, within the 
limits of the power vested in him. An act of 
state cannot be questioned or made the subject of 
legal proceedings in a court of law. 

ACT OF SUPREMACY. An act of 26 Hen. VIII. 
c. 1, and also 1 Eliz. c. 1, which recognized the 
king as the only supreme head on earth of the 
Church of England having full power to correct 
all errors, heresies, abuses, offenses, contempts 
and enormities. The oath, taken under the act, 
denies to the Pope any other authority than that 
of the Bishop of Rome. 

ACT OF UNIFORMITY. In English law. The 
statute of 13 & 14 Car. II. c. 4, enacting that the 
book of common prayer, as then recently revised, 
should be used in every parish church and other 
place of public worship, and otherwise ordaining 
a uniformity in religious services, etc. 3 Steph. 
Comm. 104. 

ACT OF UNION. The statutes uniting England 
and Wales, 27 Hen. VIII, c. 26, confirmed by 34 & 
35 Hen. VIII, c. 26; England and Scotland, 5 Anne, 
c. 8; Great Britain and Ireland, 39 & 40 Geo. Ill, 
c. 67. 1 Bl.Comm. 97. 

The act uniting the three lower counties (now 
Delaware) to the province of Pennsylvania, passed 
at Upland, Dec. 7, 1682, is so called. 

ACT ON PETITION. A form of summary pro- 
ceeding formerly in use in the high court of 
admiralty, in England, in which the parties stated 
their respective cases briefly, and supported their 
statements by affidavit. 2 Dod.Adm. 174, 184; 1 
Hagg.Adm. 1, note. 

ACTA DIURNA. Lat. In the Roman law. Daily 
acts or chronicles; the public registers or journals 
of the daily proceedings of the senate, assemblies 
of the people, courts of justice, etc. Supposed to 
have resembled a modern newspaper. Brande. 
Thus: I do not find the thing published in the 
acta, diurna (daily records of affairs) ; Tacitus, 
Ann. 3, 3; Ainsworth, Lex.; Smith, Lex. 

ACTA EXTERIORA INDICANT INTERIORA 
SECRETA. 8 Coke, 146b. External acts indicate 
undisclosed thoughts. 


44 



ACTIO COMMUNI 


ACTA IN UNO JUDICIO NON PROBANT IN 
ALIO NISI INTER EASDEM PERSONAS. Things 
done in one action cannot be taken as evidence in 
another, unless it be between the same parties. 
Tray.Lat.Max. U. 

ACTA PUBLICA. Lat. Things of general knowl- 
edge and concern; matters transacted before cer- 
tain public officers. Calvinus, Lex. 

ACTE. In French law, denotes a document, or 
formal, solemn writing, embodying a legal attesta- 
tion that something has been done, corresponding 
to one sense or use of the English word "act." 

Actes de naissance are the certificates of birth, and must 
contain the day, hour, and place of birth, together with 
the sex and intended Christian name of the child, and the 
names of the parents and of the witnesses. Actes de 
mariage are the marriage certificates, and contain names, 
professions, ages, and places of birth and domicile of the 
two persons marrying, and of their parents ; also the con- 
sent of these latter, and the mutual agreements of the 
intended husband and wife to take each other for better 
and worse, together with the usual attestations. Actes de 
deces are the certificates of death, which are required to 
be drawn up before any one may be buried. Les actes de 
Vetat civil are public documents. Brown. 

ACTE AUTHENTIQUE. A deed executed with 
certain prescribed formalities, in the presence of 
a notary, mayor, greffier, huissier, or other func- 
tionary qualified to act in the place in which it is 
drawn up. Argles, Fr. Merc. Law, 50. 

ACTE DE FRANCISATION. The certificate of 
registration of a ship, by virtue of which its 
French nationality is established. 

ACTE D'HERITIER. Act of inheritance. Any ac- 
tion or fact on the part of an heir which mani- 
fests his intention to accept the succession; the 
acceptance may be express or tacit. Duverger. 

ACTE EXTRAJUDICIAIRE. A document served 
by a huissier, at the demand of one party upon 
another party, without legal proceedings. 

ACTING. The word "acting" means doing duty 
for another; officiating; holding a temporary 
rank or position or performing services tempo- 
rarily; as, an acting captain, manager, president. 
Pellecchia v. Mattia, 121 N.J.L. 21, 1 A.2d 28. Per- 
forming; operating. See Meyer v. Johnston, 64 
Ala. 603, 665. 

An acting trustee is one who takes upon himself to per- 
form some or all of the trusts mentioned in a will. Sharp 
v. Sharp, 2 Barn. & Aid. 415. 

ACTING OFFICER. The phrase "acting officer" 
is used to designate, not an appointed incumbent, 
but merely a locum tenens, who is performing the 
duties of an office to which he himself does not 
claim title. State ex rel. Gossett v. O'Grady, 137 
Neb. 824, 291 N.W. 497, 501; State Bank of Wil- 
liams v. Gish, 167 Iowa, 526, 149 N.W. 600, 601. 

'Acting Supervising Architect." Fraser v. United States, 
16 Ct.Cl. 514. An acting executor is one who assumes to 
act as executor for a decedent, not being the executor 
legally appointed or the executor in fact. Morse v. Allen, 
99 Mich. 303, 58 N.W. 327. 

ACTIO. Lat. In the civil law. An action or 
suit; a right or cause of action. It should be 


noted that this term means both the proceeding 
to enforce a right in a court and the right itself 
which is sought to be enforced. 

The first sense here given is the older one. Justinian, 
following Celsus, gives the well-known definition : Actio 
nihil aliud est quam jus persequendi in judicio quod sibi 
debetur, which may be thus rendered : An action is simply 
the right to enforce one's demands in a court of law. See 
Pollock, Expansion of C. L. 92. 

ACTIO AD EXHIBENDUM. An action for the 
purpose of compelling a defendant to exhibit a 
thing or title in his power. It was preparatory to 
another action, which was always a real action 
in the sense of the Roman law; that is, for the 
recovery of a thing, whether it was movable or 
immovable. Merl. Quest. tome i, 84. 

ACTIO JESTIMATORIA; ACTIO QUANTI MI- 
NOR'S. Two names of an action which lay in 
behalf of a buyer to reduce the contract price 
proportionately to the defects of the object, not 
to cancel the sale; the judex had power, however, 
to cancel the sale. Hunter, Rom. Law, 332, 505. 

ACTIO ARBITRARIA. Action depending on the 
discretion of the judge. In this, unless defendant 
would make amends to plaintiff as dictated by the 
judge in his discretion, he was liable to be con- 
demned. Hunter, Rom. Law, 825, 987. 

ACTIO BONE FIDEL (Lat.: An action of good 
faith.) A class of actions in which the judge 
might at the trial ex officio, take into account any 
equitable circumstances that were presented to 
him affecting either of the parties to the action. 

1 Spence, Eq.Jur. 210, 218. 

ACTIO CALUMNI1E. An action to restrain de- 
fendant from prosecuting a groundless proceeding 
or trumped-up charge against plaintiff. Hunter, 
Rom. Law, 859, 1020. An action for malicious 
prosecution. So. Afr. Leg. Diet. 

ACTIO CIVILIS. In the common law. A civil ac- 
tion, as distinguished from a criminal action. 

Bracton divides personal actions into criPrtinalia et 
civilia, according as they grow out of crimes or contracts. 
Bract, fol. 101b. Actiones civiles are those forms of reme- 
dies which were established under the rigid system of the 
civil law, the jus civilis. See Actio Honoraria. 

ACTIO COMMODATI. Included several actions 
appropriate to enforce the obligations of a bor- 
rower or a lender. Hunter, Rom. Law, 305. 

ACTIO COMMODATI CONTRARIA. An action 
by the borrower against the lender, to compel the 
execution of the contract. Poth. Pre't a Usage, n. 
75. 

ACTIO COMMODATI DIRECTA. An action by a 
lender against a borrower, the principal object of 
which is to obtain a restitution of the thing lent. 
Poth. Pret a Usage, nn. 65, 68. 

ACTIO COMMUNI DIVIDUNDO. An action to 
procure a judicial division of joint property. Hun- 
ter, Rom. Law, 194. It was analogous in its object 
to proceedings for partition in modern law. 


45 



ACTIO CONDICTIO 


ACTIO CONDICTIO INDEBIT ATI. An action by 
which the plaintiff recovers the amount of a sum 
of money or other thing he paid by mistake. Poth. 
Promutuum, n. 140; Merl. Repert. 

ACTIO CONFESSORIA. An affirmative petitory 
action for the recognition and enforcement of a 
servitude. So called because based on plaintiffs 
affirmative allegation of a right in defendant's 
land. Distinguished from an actio negatoria, 
which was brought to repel a claim of defendant 
to a servitude in plaintiffs land. Mackeld. Rom. 
Law, § 324. 

ACTIO CONTRARIO. Counter action or cross 
action. 

ACTIO CRIMINALIS. Criminal action. 

ACTIO DAMNI INJURIA. The name of a gen- 
eral class of actions for damages, including many 
species of suits for losses caused by wrongful or 
negligent acts. The term is about equivalent to 
our "action for damages." 

ACTIO DE DOLO MALO. An action of fraud; 
an action which lay for a defrauded person against 
the defrauder and his heirs, who had been en- 
riched by the fraud, to obtain the restitution of 
the thing of which he had been fraudulently de- 
prived, with all its accessions (cum omni causa;) 
or, where this was not practicable, for compensa- 
tion in damages. Mackeld. Rom. Law, § 227. 

ACTIO DE PECULIO. An action concerning or 
against the peculium, or separate property of a 
party. 

ACTIO DE PECUNIA CONSTITUTA. An action 
for money engaged to be paid ; an action which 
lay against any person who had engaged to pay 
money for himself, or for another without any 
formal stipulation. Inst. 4, 6, 9; Dig. 13, 5; Cod. 
4, 18. 

ACTIO DE TIGNO JUNCTO. An action by the 
the owner of material built by another into his 
building. 

If so used in good faith double their value could be 
recovered; if in bad faith, the owner could recover suita- 
ble damage for the wrong, and recover the property when 
the building came down. So. Afr. Leg. Diet. 

ACTIO DEPOSITI CONTRARIA. An action which 
the depositary has against the depositor, to com- 
pel him to fulfil his engagement towards him. 
Poth. Du Depot, n. 69. 

ACTIO DEPOSIT! DIRECTA. An action which is 
brought by the depositor against the depositary, 
in order to get back the thing deposited. Poth. 
Du Depot, n. 60. 

ACTIO DIRECTA. A direct action; an action 
founded on strict law, and conducted according to 
fixed forms; an action founded on certain legal 
obligations which from their origin were accurate- 
ly defined and recognized as actionable. See Actio 
Utilis. 


ACTIO EMPTI . An action employed in behalf of 
a buyer to compel a seller to perform his obliga- 
tions or pay compensation; also to enforce any 
special agreements by him, embodied in a con- 
tract of sale. Hunter, Rom. Law, 332, 505. 

ACTIO EX CONDUCTO. An action which the 
bailor of a thing for hire may bring against the 
bailee, in order to compel him to redeliver the 
thing hired. 

ACTIO EX CONTRACTU. In the civil and com- 
mon law. An action of contract; an action aris- 
ing out of, or founded on, contract. 3 Bl.Comm. 
117. 

ACTIO EX DELICTO. In the civil and common 
law. An action of tort; an action arising out of 
fault, misconduct, or malfeasance. Inst. 4, 6, 15; 
3 Bl.Comm. 1 17. Ex male ficio is the more com- 
mon expression of the civil law; which is adopted 
by Bracton. Inst. 4, 6, 1; Bract, fols. 102, 103. 

ACTIO EX LOCATO. An action upon letting; an 
action which the person who let a thing for hire 
to another might have against the hirer. Dig. 19, 
2; Cod. 4, 65. 

ACTIO EX STIPULATU. An action brought to 
enforce a stipulation. 

ACTIO EXERCITORIA. An action against the 
exercitor or employer of a vessel. 

ACTIO FAMILIZE ERCISCUNDIE. An action for 
the partition of an inheritance. Inst. 4, 6, 20; Id. 
4, 17, 4. Called, by Bracton and Fleta, a mixed ac- 
tion, and classed among actions arising ex quasi 
contractu. Brae. fol. 10013; Bract, fols. 443 b, 444; 
Fleta, lib. 2, c. 60, § 1. 

ACTIO FURTI . An action of theft; an action 
founded upon theft. Inst. 4, 1, 13-17; Bract, fol. 
444. This could be brought only for the penalty 
attached to the offense, and not to recover the 
thing stolen, for which other actions were pro- 
vided. Inst. 4, 1, 19. An appeal of larceny. The 
old process by which a thief can be pursued and 
the goods vindicated. 2 Holdsw. Hist. Eng. L. 202. 

ACTIO HONORARIA. An honoraiy, or praetorian 
action. Dig. 44, 7, 25, 35. Actiones honorarice are 
those forms of remedies which were gradually 
introduced by the praetors and diles, by virtue 
of their equitable powers, in order to prevent the 
failure of justice which too often resulted from 
the employment of the actiones civiles. These 
were found so beneficial in practice that they 
eventually supplanted the old remedies, of which 
in the time of Justinian hardly a trace remained. 
Mackeldey, Civ.L. § 194; 5 Savigny, System. 

ACTIO IN FACTUM. In action adapted to the 
particular case, having an analogy to some actio 
in jus, the latter being founded on some subsisting 
acknowledged law. 1 Spence, Eq.Jur. 212. The 
origin of these actions is similar to that of actions 
on the case at common law. 


46 



ACTIO PCENALIS 


ACTIO IN PERSONAM. 

Admiralty Law 

An action directed against the particular person 
who is to be charged with the liability. It is dis- 
tinguished from an actio in rem, which is a suit 
directed against a specific thing (as a vessel) ir- 
respective of the ownership of it, to enforce a 
claim or lien upon it, or to obtain, out of the 
thing or out of the proceeds of its sale, satisfac- 
tion for an injury alleged by the claimant. 

Civil Law 

An action against the person, founded on a per- 
sonal liability; an action seeking redress for the 
violation of a jus in personam or right available 
against a particular individual. 

ACTIO IN REM. In the civil and common law. 
An action for a thing; an action for the recovery 
of a thing possessed by another. Inst. 4, 6, 1. An 
action for the enforcement of a right (or for 
redress for its invasion) which was originally 
available against all the world, and not in any 
special sense against the individual sued, until he 
violated it. See In Rem. 

ACTIO JUDICATI. An action instituted, after 
four months had elapsed after the rendition of 
judgment, in which the judge issued his warrant 
to seize, first, the movables, which were sold 
within eight days afterwards; and then the im- 
movables, which were delivered in pledge to the 
creditors, or put under the care of a curator, and 
if, at the end of two months, the debt was not 
paid, the land was sold. Dig. 42, 1; Cod. 8, 34. 

According to some authorities, if the defendant then 
utterly denied the rendition of the former judgment, the 
plaintiff was driven to a new action, conducted like any 
other action, which was called actio judicati, and which 
had for its object the determination of the question 
whether such a judgment had been rendered. The exact 
meaning of the term is by no means clear. See Savigny, 
Syst. 305, 41 1; 3 Ortolan, Just. § 2033. 

ACTIO LEGIS AQUILINE. An action under the 
Aquilian law; an action to recover damages for 
maliciously or injuriously killing or wounding the 
slave or beast of another, or injuring in any way 
a thing belonging to another. Otherwise called 
damni injurice actio. 

ACTIO MANDATE Included actions to enforce 
contracts of mandate or obligations arising out 
of them. Hunter, Rom. Law, 316. 

ACTIO MIXTA. A mixed action; an action 
brought for the recovery of a thing, or compensa- 
tion for damages, and also for the payment of a 
penalty; partaking of the nature both of an actio 
in rem and in personam. Inst. 4, 6, 16, 18, 19, 20; 
Mackeld.Rom.Law, § 209. 

ACTIO NEGATORIA (or NEGATIVA). An ac- 
tion brought to repel a claim of the defendant to a 
servitude in the plaintiffs land. Mackeld.Rom. 
Law, § 324. See Actio Confessoria. 

ACTIO NEGOTIORUM GESTORUM. Included ac- 
tions between principal and agent and other par- 


ties to an engagement, whereby one person under- 
took the transaction of business for another. 

ACTIO NON. In pleading. The Latin name of 
that part of a special plea which follows next 
after the statement of appearance and defense, 
and declares that the plaintiff "ought not to have 
or maintain his aforesaid action thereof against" 
the defendant (in Latin, actionem non habere 
debet). 1 Chit. Plead. 531; 2 id. 421; Stephens, 
Plead. 394. 

ACTIO NON ACCREVIT INFRA SEX ANNOS. 
The name of the plea of the statute of limitations, 
when the defendant alleges that the plaintiff s ac- 
tion has not accrued within six years. 

ACTIO NON DATUR NON DAMNIFICATO. An 
action is not given to one who is not injured. 
Jenk.Cent. 69. 

ACTIO NON FACIT REUM, NISI MENS SIT 
REA. An act does not make one guilty, unless 
the intention be bad. Lofft, 37. 

ACTIO NON ULTERIUS. In English pleading. 
A name given to the distinctive clause in the plea 
to the further maintenance of the action, intro- 
duced in place of the plea puis darrein continu- 
ance; the averment being that the plaintiff ought 
not further (ulterius) to have or maintain his ac- 
tion. Steph.Pl. 64, 65, 401. 

ACTIO NOXALIS. A noxal action; an action 
which lay against a master for a crime commit- 
ted or injury done by his slave; and in which the 
master had the alternative either to pay for the 
damage done or to deliver up the slave to the com- 
plaining party. Inst. 4, 8, pr.; Heinecc.Elem. lib. 
4, tit. 8. So called from noxa, the offense or in- 
jury committed. Inst. 4, 8, 1. 

ACTIO PERPETUA. An action without limita- 
tion period. 

ACTIO PERSONALIS. In the civil and common 
law. A personal action. 

The ordinary term for this kind of action in the civil 
law is actio in personam, ( q. v.,) the word personalis 
being of only occasional occurrence. Inst. 4, 6, 8, in tit.; 
Id. 4, 11, pr. 1. Bracton, however, uses it freely, and 
hence the personal action of the common law. Bract, fols. 
102a, 159b. See Action. 

ACTIO PERSONALIS MORITUR CUM PER- 
SONA. A personal right of action dies with the 
person. Noy, Max. 14. 

The maxim was originally applied to almost every form 
of achon, whether arising out of contract or tort, but the 
common law was modified by the Statute of 4 Edward the 
III. Momand v. Twentieth-Century Fox Film Corporation, 
D.C.Okl., 37 F.Supp. 649, 652. 

ACTIO PIGNORATITIA. An action of pledge; 
an action founded on the contract of pledge 
(pignus). Dig. 13, 7; Cod. 4, 24. 

ACTIO PCENALIS. Called also actio ex delicto. 
An action in which a penalty was recovered of 
the delinquent. 

Actiones pcenales and actiones mixtce comprehended 
cases of injuries, for which the civil law permitted redress 



ACTIO 1)(ENALIS 

by private action, but which modern civilization univer- 
sally regards as crimes; that is, offenses against society 
at large, and punished by proceedings in the name of the 
state alone. Thus, theft, receiving stolen goods, robbery, 
malicious mischief, and the murder or negligent homicide 
of a slave (in which case an injury to property was 
involved), gave rise to private actions for damages against 
the delinquent. Inst. 4, 1. De obligationibus quce ex 
delicto nascwntur; id. 2. De bonis vi raptis; id. 3. De 
lege Aquilia. And see Mackeldey, Civ.L. § 196; 5 Savigny, 
System, § 210. 

Actio pcenalis in haredem non datur, nisi forte 
ex damno locupletior hares factus sit. A penal 
action is not given against an heir, unless, in- 
deed, such heir is benefited by the wrong. 

ACTIO PRIEJUDICIALIS. A preliminary or pre- 
paratory action. An action instituted for the de- 
termination of some preliminary matter on which 
other litigated matters depend, or for the deter- 
mination of some point or question arising in an- 
other or principal action; and so called from its 
being determined before , (prius, or prce judicari.) 

ACTIO PRIESCRIPTIS VERBIS. A form of ac- 
tion which derived its force from continued usage 
or the responsa prudentium, and was founded on 
the unwritten law. 1 Spence, Eq.Jur. 212. The 
distinction between this action and an actio in 
factum is said to be, that the latter was founded 
not on usage or the unwritten law, but by analogy 
to or on the equity of some subsisting law; 1 
Spence, Eq.Jur. 212. 

ACTIO PRIETORIA. A praetorian action; one 
introduced by the pr^tor, as distinguished from 
the more ancient actio civilis, (q. v.) Inst. 4, 6, 3; 
Mackeld.Rom.Law, § 207. 

ACTIO PRO SOCIO. An action of partnership. 
An action brought by one partner against his 
associates to compel them to carry out the terms 
of the partnership agreement. Story, Partn., Ben- 
nett ed. § 352; Pothier, Contr. de Societe, n. 34. 

ACTIO PUBLICIANA. An action which lay for 
one who had lost a thing of which he had bona 
fide obtained possession, before he had gained a 
property in it, in order to have it restored, under 
color that he had obtained a property in it by 
prescription. Inst. 4, 6, 4; Heinecc. Elem. lib. 4, 
tit. 6, § 1131; Halifax, Anal. b. 3, c. 1, n. 9. It was 
an honorary action, and derived its name from the 
pr ae tor Publicius, by whose edict it was first given. 
Inst. 4, 6, 4. 

ACTIO QUIELIBET IT SUA VIA. Every action 
proceeds in its own way. Jenk.Cent. 77. 

ACTIO QUOD JUSSU. An action given against 
a master, founded on some business done by his 
slave, acting under his order, ( jussu.) Inst. 4, 7, 
1; Dig. 15, 4; Cod. 4, 26. 

ACTIO QUOD METUS CAUSA. An action grant- 
ed to one who had been compelled by unlawful 
force, or fear (metus causa) that was not ground- 
less, (metus probabilis or Justus,) to deliver, sell, 
or promise a thing to another. Bract, fol. 103b; 
Mackeld.Rom.Law, § 226. 


ACTIO REALIS. A real action. The proper term 
in the civil law was rei vindicatio. Inst. 4, 6, 3. 

ACTIO REDHIBITORIA. An action to cancel a 
sale in consequence of defects in the thing sold. 

It was prosecuted to compel complete restitution to the 
seller of the thing sold, with its produce and accessories, 
and to give the buyer .back the price, with interest, as an 
equivalent for the restitution of the produce. Hunter, 
Rom. Law, 332. See Redhibitory Action. 

ACTIO RERUM AMOTARUM. An action for 
things removed; an action which, in cases of 
divorce, lay for a husband against a wife, to re- 
cover things carried away by the latter, in con- 
templation of such divorce. Dig. 25, 2; Id. 25, 2; 
25, 30. It also lay for the wife against the hus- 
band in such cases. Dig. 25, 2, 7, 11; Cod. 5, 21. 

ACTIO RESCISSORIA. An action for restoring 
plaintiff to a right or title which he has lost by 
prescription, in a case where the equities are such 
that he should be relieved from the operation of 
the prescription. Mackeld.Rom.Law, § 226. 

An action to rescind a prescriptive title by one 
who was entitled to exemption from the prescrip- 
tion law, as a minor, etc. 

ACTIO SERVIANA. An action which lay for the 
lessor of a farm, or rural estate, to recover the 
goods of the lessee or farmer, which were pledged 
or bound for the rent. Inst. 4, 6, 7. 

ACTIO STRICTI JURIS. An action of strict 
right. The class of civil law personal actions, 
which were adjudged only by the strict law, and 
in which the judge was limited to the precise 
language of the formula, and had no discretion- 
ary power to regard the bona fides of the trans- 
action. See Inst. 4, 6, 28; Gaius, iii. 137; Mackeld. 
Rom. Law, § 210; 1 Spence, Eq.Jur. 218. 

ACTIO TEMPORALIS. An action which must 
be brought within a limited time. See Limitation. 

ACTIO TUTELIE. Action founded on the duties 
or obligations arising on the relation analogous to 
that of guardian and ward. 

ACTIO UTILIS. A beneficial action or equitable 
action. An action founded on equity instead of 
strict law, and available for those who had eq- 
uitable rights or the beneficial ownership of prop- 
erty. 

Actions are divided into actiones directce or utiles. The 
former are founded on certain legal obligations which from 
their origin were accurately defined and recognized as ac- 
tionable. The latter were formed analogically in imitation 
of the former. They were permitted in legal obligations 
for which the actiones directce were not originally intend- 
ed, but which resembled the legal obligations which formed 
the basis of the direct action. Mackeld.Rom.Law, § 207. 

ACTIO VENDITI. An action employed in behalf 
of a seller, to compel a buyer to pay the price, 
or perform any special obligations embodied in 
a contract of sale. Hunter, Rom. Law, 332. 

ACTIO VI BONORUM RAPTORUM. An action 
for goods taken by force; a species of mixed ac- 
tion, which lay for a party whose goods or mov- 
ables (bona) had been taken from him by force, 


48 



ACTION 


(vi,) to recover the things so taken, together with 
a penalty of triple the value. Inst. 4, 2; Inst. 4, 
6, 19. Bracton describes it as lying de rebus mo- 
bilibus vi ablatis sive robbatis, (for movable 
things taken away by force, or robbed.) Brae, 
fol. 103b. 

ACTIO VULGARIS. A legal action; a common 
action. Sometimes used for actio directa. Mack- 
eld. Rom. Law, § 207. 

ACTION. Conduct; behavior; something done; 
the condition of acting; an act or series of acts. 

French Commercial Law 

Stock in a company, or shares in a corporation. 

Practice 

The legal and formal demand of one's right 
from another person or party made and insisted 
on in a court of justice. Smith-Webster Co. v. 
John, C.C.A.Pa., 259 F. 549, 551; Dinsmore v. 
Barker, 61 Utah, 332, 212 P. 1109; Shaw v. Lone 
Star Building & Loan Ass'n, Tex.Civ.App., 40 S.W. 
2d 968, 969. Pursuit of right in court, without 
regard to form of procedure. Ginzberg v. Wy- 
man, 272 Mass. 499, 172 N.E. 614, 615. Form of 
suit given by law for recovery of that which is 
one's due. Co.Litt. 284b, 285a; Peterson v. A. 
Guthrie & Co., D.C.Wash., 3 F.Supp. 136, 138. 
Judicial means of enforcing a right. Code Ga. 
1882, § 3151 (Civ. Code 1926, § 5507). Judicial rem- 
edy for the enforcement or protection of a right. 
White v. White, 98 Ind.App. 587, 186 N.E. 349, 351. 

An ordinary proceeding in a court of justice by 
which one party prosecutes another for the en- 
forcement or protection of a right, the redress or 
prevention of a wrong, or the punishment of a 
public offense. Code Civ. Proc.S.D. 1903, § 12 
(Comp. Laws 1929, § 2091) ; Missionary Soc. v. Ely, 
47 N.E. 537, 56 Ohio St. 405. 

Cross-action, White v. St. Louis Post Offices Corporation, 
348 Mo. 961, 156 S.W. 2d 695, 698, and counterclaim, Webster 
v. Freeman, 27 Cal.App.2d 5, 80 P.2d 497, 499, are actions 
but not set off, Kress v. Central Trust Co. of Rochester, 
283 N.Y.S. 467, 471, 246 App. Div. 76. 

It includes all the formal proceedings in a court of 
justice attendant upon the demand of a right made by one 
person of another in such court, including an adjudication 
upon the right and its enforcement or denial by the court. 

Proceedings held actions : Disbarment, In re Wilcox, 
90 Kan. 646, 135 P. 995; probating will, Simpson v. Simp- 
son, 273 111. 90, 1 12 N.E. 276, 277; will contest, Byrne v. 
Byrne, Mo. Sup., 181 S.W. 391, 392; workmen's compensa- 
tion, Pigeon v. Employers' Liability Assur. Corporation, 
216 Mass. 51, 102 N.E. 932, 935, Ann.Cas. 1915A, 737; crimi- 
nal prosecution, Mason v. U. S., C.C.A.I11., 1 F.2d 279, 280; 
mandamus, People v. Lueders, 287 111. 107, 122 N.E. 374, 
375; naturalization, In re Fordiani, 98 Conn. 435, 120 A. 
338, 341. 

Proceedings held not actions : attachment, State v. Su- 
perior Court of Spokane County, 110 Wash. 49, 187 P. 708; 
arbitration, Temple v. Riverland Co., Tex.Civ.App., 228 S. 
W. 605, 609; criminal prosecution, U. S. v. Cleveland, D.C. 
Ala., 281 F. 249, 253; Wynn v. Commonwealth, 198 Ky. 
644, 249 S.W. 783, 784; writ of citation, McClelland v. 
State, 101 Ohio St. 42, 127 N.E. 409, 410; certiorari, Camp- 
bell, v. Common Council of City of Watertown, 46 S.D. 574, 
195 N.W. 442; mandamus, De Leyer v. Britt, 212 N.Y. 565, 
106 N.E. 57; child's support, Head v. Fuller, 122 Me. 15, 
118 A. 714, 715; drainage, Richardson County v. Drainage 
Black's Law Dictionary Revised 4th Ed.-4 


Dist. No. 2 of Richardson County, 96 Neb. 169, 147 N.W. 
205, 206; condemnation, State v. Superior Court for Ferry 
County, 145 Wash. 576, 261 P. 110, 111. 

Scotch Law 

A suit or judicial proceeding. 

Suit Distinguished 

Strictly applied, action does not usually refer 
to chancery practice. City of Beckley v. Craig- 
head, 125 W.Va. 484, 24 S.E.2d 908, 911. But 
terms "action" and "suit" are now nearly, if not 
entirely, synonymous. (3 Bl.Comm. 3, 116, et pas- 
sim.) Elmo v. James, Tex.Civ.App., 282 S.W. 835, 
839; Coleman v. Los Angeles County, 180 Cal. 
714, 182 P. 440. Or, if there be a distinction, it 
is that the term "action" is generally confined to 
proceedings in a court of law, while "suit" is 
equally applied to prosecutions at law or in equity. 
McBride v. University Club, 112 Ohio St. 69, 146 
N.E. 804, 805; Guarantee Trust & Banking Co. v. 
Dickson, 148 Ga. 311, 96 S.E. 561, 562; Niantic 
Mills Co. v. Riverside & O. Mills, 19 R.I. 34, 31 A. 
432; Ulshafer v. Stewart, 71 Pa. 170. Formerly, 
however, an action was considered as terminat- 
ing with the giving of judgment, the execution 
forming no part of it. (Litt. § 504; Co.Litt. 289a.) 
A suit included the execution. (Litt. § 291a.) So, 
an action is termed by Lord Coke, "the right of 
a suit. " (2 Inst. 40.) Burrill. 

Types of Actions 

Actions are called, in common-law practice, ex 
contractu when they are founded on a contract; 
ex delicto when they arise out of a tort. Nelson 
v. Great Northern R. Co., 28 Mont. 297, 72 Pac. 
642; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190. 

If a cause of action arises from a breach of promise, the 
action is "ex contractu," and, if it arises from breach of 
duty growing out of contract, it is "ex delicto." Tort or 
trespass is none the less such because it incidentally in- 
volves breach of contract. Berning v. Colodny & Colodny, 
103 Cal.App. 188, 284 P. 496, 498. 

As to class or representative actions. See Class 
Or Representative Action. 

As to the distinction between a revocatory ac- 
tion and an action in simulation, see Chapman v. 
Irwin, 157 La. 920, 103 So. 263, 265. 

Civil actions are such as lie in behalf of persons to en- 
force their rights or obtain redress of wrongs in their rela- 
tion to individuals. 

Common law actions are such as will lie, on the par- 
ticular facts, at common law, without the aid of a stat- 
ute. 

Criminal actions are such as are instituted by the sov- 
ereign power, for the purpose of punishing or preventing 
offenses against the public. 

Local action. See Local Action. 

Mixed actions partake of twofold nature of real and 
personal actions, having for their object the demand and 
restitution of real property and also personal damages 
for a wrong sustained. 3 Bl.Comm. 118; Hall v. Decker, 
48 Me. 257. Mixed actions are those which are brought 
for the specific recovery of lands, like real actions, but 
comprise, joined with this claim, one for damages in re- 
spect of such property; such as the action of waste, where, 
in addition to the recovery of the place wasted, the de- 
mandant claims damages; the writ of entry, in which, by 
statute, a demand of mesne profits may be joined; and 



ACTION 


dower, in which a claim for detention may be included. 48 
Me. 255. In the civil law, an action in which some spe- 
cific thing was demanded, and also some personal obliga- 
tion claimed to be performed; or, in other words, an ac- 
tion which proceeded both in rem and in personam. Inst. 
4, 6, 20. 

Penal actions are such as are brougnt, either by the state 
or by an individual under permission of a statute, to en- 
force a penalty imposed by law for the commission of a 
prohibited act. 

Personal action. In civil law, an action in personam. It 
seeks to enforce an obligation imposed on the defendant 
by his contract or delict; that is, it is the contention that 
he is bound to transfer some dominion or to perform some 
service or to repair some loss. Gaius, bk. 4, § 2. In com- 
mon law. An action brought for the recovery of some debt 
or for damages for some personal injury, in contradistinc- 
tion to the old real actions, which related to real property 
only. See 3 Bl.Comm. 117. Boyd v. Cronan, 71 Me. 286; 
Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 219; Osborn v. 
Fall River, 140 Mass. 508, 5 N.E. 483. An action which can 
be brought only by the person himself who is injured, and 
not by his representatives. 

Popular actions, in English usage, are those actions 
which are given upon the breach of a penal statute, and 
which any man that will may sue on account of the king 
and himself, as the statute allows and the case requires. 
Because the action is not given to one especially, but gen- 
erally to any that will prosecute, it is called "action pop- 
ular ;" and, from the words used in the process, (qui tarn 
pro domino rege sequitur quam pro se ipso, who sues as 
well for the king as for himself,) it is called a qui tarn 
action. Tomlins. 

Real actions. At common law, one brought for the spe- 
cific recovery of lands, tenements, or hereditaments. 
Steph.Pl. 3; Crocker v. Black, 16 Mass. 448; Hall v. Deck- 
er, 48 Me. 256; Doe v. Waterloo Min. Co., C.C.Cal., 43 F. 
220; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703, 708. They 
are droitural when they are based upon the right of prop- 
erty, and possessory when based upon the right of posses- 
sion. They are either writs of right ; writs of entry upon 
disseisin (which lie in the per, the per et cui, or the post), 
intrusion, or alienation; writs ancestral possessory, as 
mort d'ancestor, aiel, besaiel, cossinage, or nuper obiit. 
Com. Dig. Actions (D 2). The former class was divided 
into droitural, founded upon demandant's own seisin, and 
ancestral droitural upon the demandant's claim in respect 
of a mere right descended to him from an ancestor. Pos- 
sessory actions were divided in the same way — as to the 
demandant's own seisin and as to that of his ancestor. 
Among the civilians, real actions, otherwise called "vindi- 
cations," were those in which a man demanded something 
that was his own. They were founded on doiminion, or 
Jus in re. The real actions of the Roman law were not, 
like the real actions of the common law, confined to real 
estate, but they included personal, as well as real, proper- 
ty. Wharton. 

Statutory actions are such as can only be based upon the 
particular statutes creating them. 

Transitory actions are those founded upon a cause of ac- 
tion not necessarily referring to or arising in any particu- 
lar locality. Their characteristic feature is that the right 
of action follows the person of the defendant. Brown v. 
Brown, 155 Tenn. ;,30, 296 S.W. 356, 358. Actions are 
"transitory" when the transactions relied on might have 
taken place anywhere, and are "local" when they could 
not occur except in some particular place ; the distinction 
being in the nature of the subject of the injury, and not 
in the means used or the place at which the cause of action 
arises. Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 236, 44 
L.R.A.,N.S., 279; Taylor v. Sommers Bros. Match Co., 35 
Idaho, 30, 204 P. 472, 474, 42 A.L.R. 189. The test of 
whether an action is local or transitory is whether the in- 
jury is done to a subject-matter which, in its nature, could 
not arise beyond the locality of its situation, in contra- 
distinction to the subject causing the injury. Mattix v. 
Swepston; 127 Tenn. 693, 155 S.W. 928, 929. Actions triable 
where defendant resides are termed "transitory" and those 
triable where the subject-matter is situated are termed "lo- 
cal." State v. District Court of Swift County, 164 Minn. 
433, 205 N.W. 284, 285. 

See Cause of Action. 


ACTION EX CONTRACTU. An action for breach 
of promise set forth in a contract, express or 
implied. Bristol v. Sun Vacuum Stores, 181 
Misc. 522, 42 N.Y.S.2d 501, 504; McCullough v. 
The American Workmen, 200 S.C. 84, 20 S.E.2d 640, 
644. 

ACTION EX DELICTO. An action arising from 
a breach of duty growing out of contract. Bern- 
ing v. Colodny & Colodny, 103 Cal.App. 188, 284 P. 
496, 498; Federal Life Ins. Co. v. Maxam, 70 
Ind.App. 266, 1 17 N.E. 801, 806. 

ACTION FOR ACCOUNTING. Action in equity 
based on inadequacy of legal remedy and particu- 
larly applicable to mutual and complicated ac- 
counts and where confidential or fiduciary rela- 
tionship exists. Dahlberg v. Fisse, 328 Mo. 213, 
40 S.W. 2d 606, 609. To adjust mutual accounts 
and to strike a balance. Cline v. McKee, 186 Okl. 
366, 98 P.2d 25, 27. 

ACTION FOR MONEY HAD AND RECEIVED. 
One in assumpsit based upon promise to repay im- 
plied by law, and in respect of limitation is a 
stated or liquidated account. Mutual Building & 
Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817, 
818. 

Where one person has received money or its equivalent 
under such circumstances that in equity and good con- 
science he ought not to retain it and in justice it belongs 
to another. Interstate Life & Accident Co. v. Cook, 19 
Tenn.App. 290, 86 S.W.2d 887, 891. 

ACTION FOR POINDING. An action by a credi- 
tor to obtain a sequestration of the rents of land 
and the goods of his debtor for the satisfaction of 
the debt, or to enforce a distress. 

ACTION IN PERSONAM, IN REM. See In Per- 
sonam, In Rem. 

ACTION OF ABSTRACTED MULTURES. An ac- 
tion for multures or tolls against those who are 
thirled to a mill, i. e., bound to grind their corn 
at a certain mill, and fail to do so. Bell. 

ACTION OF ADHERENCE. See Adherence. 

ACTION OF A WRIT. A phrase used when a de- 
fendant pleads some matter by which he shows 
that the plaintiff had no cause to have the writ 
sued upon, although it may be that he is entitled 
to another writ or action for the same matter. 
Cowell. 

ACTION OF ASSIZE. A real action which prov- 
es the title of the demandant, merely by showing 
his ancestor's possession. Sherman v. Dilley, 3 
Nev. 21, 26, citing 5 Chit.Bl. 184. 

ACTION OF ASSUMPSIT. See Assumpsit. 

ACTION OF BOOK DEBT. A form of action for 
the recovery of claims, such as are usually evi- 
denced by a book-account; this action is princi- 
pally used in Vermont and Connecticut. Newton 
v. Higgins, 2 Vt. 366. 

ACTION ON CONTRACT. An action brought to 
enforce rights whereof the contract is the evi- 


50 



ACTIONABLE 


Bence, and usually the sufficient evidence. Ko- 
kusai Kisen Kabushiki Kaisha v. Argos Mercan- 
tile Corporation, C.C.A.N.Y., 280 F. 700, 701. 

ACTION ON THE CASE. A species of personal 
action of very extensive application, otherwise 
called "trespass on the case," or simply "case," 
from the circumstance of the plaintiffs whole 
case or cause of complaint being set forth at 
length in the original writ by which formerly it 
was always commenced. 3 Bl.Comm. 122. Wal- 
lace v. Wilmington & N. R. Co., 8 Houst. (Del.) 
529, 18 A. 818. 

In its most comprehensive signification it includes as- 
sumpsit as well as an action in form ex delicto ; at present 
when it is mentioned it is usually understood to mean an 
action in form ex delicto. It is founded on the common law 
or upon acts of Parliament, and lies generally to recover 
damages for torts not committed with force, actual or im- 
plied; or having been occasioned by force where the mat- 
ter affected was not tangible, or the injury was not immed- 
iate but consequential; or where the interest in the proper- 
ty was only in reversion, in all of which cases trespass is 
not sustainable; 1 Chit. PI. 132. In the progress of judicial 
contestation it was discovered that there was a mass of tor- 
tious wrongs unattended by direct and immediate force, or 
where the force, though direct, was not expended on an ex- 
isting right of present enjoyment, for which the then 
known forms of action furnished no redress. The action 
on the case was instituted to meet this want. And wrongs 
which will maintain an action on the case are frequently 
committed in the nonobservance of duties, which are but 
the implication of contract obligation, duties of requisite 
skill, fidelity, diligence, and a proper regard for the rights 
of others, implied in every obligation to serve another. If 
the cause of action arises from a breach of promise, the ac- 
tion is "ex contractu" ; but if the cause of action arises 
from a breach of duty growing out of the contract, it is 
in form ex delicto and case. When there is a contract, ei- 
ther express or implied, from which a common-law duty 
results, an action on the case lies for the breach of that 
duty. Bently-Beale, Inc. v. Wesson Oil & Snowdrift Sales 
Co., 231 Ala. 562, 165 So. 830, 832. See Assumpsit. 

ACTION QUASI IN REM. An action brought 
against persons which only seeks to subject cer- 
tain property of those persons to discharge of 
claims asserted and judgment therein is only con- 
clusive between parties and their privies. Tobin 
v. McClellan, 225 Ind. 335, 75 N.E.2d 149, 151. 

ACTION REDHIBITORY, See Redhibitory Ac- 
tion. 

ACTION TO QUIET TITLE. One in which plain- 
tiff asserts his own estate and declares generally 
that defendant claims some estate in the land, 
without defining it, and avers that the claim is 
without foundation, and calls on defendant to set 
forth the nature of his claim, so that it may be de- 
termined by decree. 

It differs from a "suit to remove a cloud," in that plain- 
tiff therein declares on his own title, and also avers the 
source and nature of defendant's claim, points out its de- 
fect, and prays that it may be declared void as a cloud on 
plaintiffs estate. Manning v. Gregoire, 97 Or. 394, 192 P. 
406, 407. The apparent difference between an action to re- 
store a lost instrument and one to quiet title is that, in the 
former, ordinarily both the titles of plaintiff and defendant 
are deraigned in the complaint, which must disclose that, 
notwithstanding an apparent interest of defendant the 
property belongs to plaintiff ; and in the latter action the 
complaint need only allege the ultimate fact of plaintiffs 
interest and defendant's outstanding claim. Nicholson v. 
Nicholson, 67 Mont. 517, 216 P. 328, 329, 31 A.L.R. 548. 
See, also, Slette v. Review Pub. Co., 71 Mont. 518, 230 P. 
580, 581. It embraces every sort of a claim whereby the 
plaintiff might be deprived of his property or his title 


clouded or its value depreciated, or whereby the plaintiff 
might be incommoded or damnified by assertion of an out- 
standing title already held or to grow out of the adverse 
pretension. Bank of American Nat. Trust & Savings Ass'n 
v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678, 680. 

ACTIONABLE. That for which an action will 
lie, furnishing legal ground for an action. 

ACTIONABLE FRAUD. Deception practiced in 
order to induce another to part with property or 
surrender some legal right; a false representa- 
tion made with an intention to deceive; may be 
committed by stating what is known to be false 
or by professing knowledge of the truth of a state- 
ment which is false, but in either case, the essen- 
tial ingredient is a falsehood uttered with intent to 
deceive. Sawyer v. Prickett, 19 Wall. 146, 22 L. 
Ed. 105. 

To constitute "actionable fraud," it must appear that de- 
fendant made a material representation; that it was false ; 
that when he made it he knew it was false,- or made it 
recklessly without any knowledge of its truth and as a 
positive assertion ; that he made it with intention that it 
should be acted on by plaintiff ; that plaintiff acted in re- 
liance on it; and that plaintiff thereby suffered injury. 
Blair v. McCool, 136 Or. 139, 295 P. 950, 952. Essential ele- 
ments are representation, falsity, scienter, .deception, and 
injury. Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479, 482. 

ACTIONABLE MISREPRESENTATION. A false 
statement respecting a fact material to the con- 
tract and which is influential in procuring it. 
Wise v. Fuller, 29 N.J.Eq. 257. 

ACTIONABLE NEGLIGENCE. The breach or 
nonperformance of a legal duty, through neglect 
or carelessness, resulting in damage or injury to 
another. Fidelity 8s Casualty Co. v. Cutts, 95 Me. 
162, 49Atl. 673. 

It is failure of duty, omission of something which ought 
to have been done, or doing of something which ought not 
to have been done, or which reasonable man, guided by 
considerations which ordinarily regulate conduct of hu- 
man affairs, would or would not do. Goff v. Emde, 32 
Ohio App. 216, 167 N.E. 699, 700. Essential elements are 
failure to exercise due care, injury, or damage, and proxi- 
mate cause. Rountree v. Fountain, 203 N.C. 381, 166 S.E. 
329, 330. 

ACTIONABLE NUISANCE. Anything wrong- 
fully done or permitted which injures or annoys 
another in the enjoyment of his legal rights. Mil- 
ler v. City of Dayton, 70 Ohio App. 173, 41 N.E. 2d 
728, 730. 

Anything injurious to health, or indecent, or offensive to 
the senses, or an obstruction to the free use of property so 
as to interfere with the comfortable enjoyment of life or 
property. Cooper v. Overton, 102 Tenn. 211, 52 S.W. 183, 
45 L.R.A. 591. 

ACTIONABLE TORT. To constitute an "action- 
able tort," there must be a legal duty, imposed by 
statute or otherwise, owing by defendant to the 
one injured, and in the absence of such duty dam- 
age caused is "injury without wrong" or "damnum 
absque injuria." Coleman v. California Yearly 
Meeting of Friends Church, 27 Cal. App. 2d 579, 
81 P.2d 469, 470. 

ACTIONABLE WORDS. In law of libel and 
slander, such words as naturally imply damage. 
Dahm v. O'Connell, 161 N.Y.S. 909, 911, 96 Misc. 
582. 


51 



ACTIONABLE 


Per Quod 

Words actionable only on allegation and proof 
of special damage. Knapp v. Post Printing & 
Publishing Co., Ill Colo. 492, 144 P.2d981,984. 

Words not actionable per se upon their face, but only 
in consequence of extrinsic facts showing circumstances 
under which they were said or the damages resulting to 
slandered party therefrom. Smith v. Mustain, 210 Ky. 445, 
276 S.W. 154, 155, 44 A.L.R. 386. Not injurious on their 
face in their usual and natural signification, but only so in 
consequence of extrinsic facts and requiring innuendo. 
Piplack v. Mueller, 97 Fla. 440, 121 So. 459. 

Per Se 

Words in themselves libelous. Knapp v. Post 
Printing & Publishing Co., Ill Colo. 492, 144 P.2d 
981,984. 

Words which law presumes must actually, proximately, 
and necessarily damage defendant for which general dam- 
ages are recoverable and whose injurious character is a 
fact of common notoriety, established by the general con- 
sent of men, necessarily importing damage. Ellsworth v. 
Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 
400, 407. Words themselves opprobrious ; susceptible only 
of opprobrious meaning. Fite v. Oklahoma Pub. Co., 146 
Okl. 150, 293 P. 1073, 1075. Importing a charge of some 
punishable crime or some offensive disease, imputing moral 
turpitude, or tending to injure a party in his trade or 
business. Barnes v. Trundy, 31 Me. 321; Lemons v. Wells, 
78 Ky. 117; Mayrant v. Richardson, 1 Nott & McC. 347, 9 
Am. Dec. 707. Tending to injure one's reputation, thereby 
exposing him to public hatred, contempt or ridicule, tend- 
ing to degrade or lower him. Hodges v. Cunningham, 
160 Miss. 576, 135 So. 215, 217. Such words are actionable 
without allegation of special damages. Kluender v. Se- 
mann, 203 Iowa 68, 212 N.W. 326, 327. See also Libelous 
per se. 

ACTIONABLE WRONG. Committed when a re- 
sponsible person has neglected to use a reasonable 
degree of care for protection of another person 
from such injury as under existing circumstances 
should reasonably have been foreseen as a proxi- 
mate consequence of that negligence. Chadwick 
v. Bush, 174 Miss. 75, 163 So. 823, 824. 

ACTIONARE. L. Lat. (From actio , an action.) 
In old records. To bring an action; to prosecute, 
or sue. Thorn's Chron.; Whishaw. 

ACTIONARY. A foreign commercial term for 
the proprietor of an action or share of a public 
company's stock; a stockholder. 

ACTIONES LEGIS. In the Roman law, legal or 
lawful action; actions of or at law,) legitimoe ac- 
tiones.) Dig. 1, 2, 2, 6. 

ACTIONES NOMINATIE. (Lat. named actions). 
In the English chancery, writs for which there 
were precedents. The statute of Westminster, 2, 
c. 24, gave chancery authority to form new writs 
in consimili case; hence the action on the case. 

ACTIONS. (Fr.) Shares of corporate stock. 
Compare Actionary. 

ACTIONS ORDINARY. In Scotch law, all actions 
which are not rescissory. Ersk.Inst. 4, 1, 18. 

ACTIONS RESCISSORY. In Scotch law, these 
are either (1) actions of proper improbation for 
declaring a writing false or forged; (2) actions 
of reduction-improbation for the production of a 


writing in order to have it set aside or its effect 
ascertained under the certification that the writ- 
ing if not produced shall be declared false or 
forged; and (3) actions of simple reduction, for 
declaring a writing called for null until produced. 
Ersk.Princ. 4, 1,5. 

ACTIONUM GENERA MAXI ME SUNT SER- 
VANDA. The kinds of actions are especially to 
be preserved. Lofft 460. 

ACTIVE. That is in action; that demands ac- 
tion; actually subsisting; the opposite of pas- 
sive. An active debt is one which draws interest. 
An active trust is a confidence connected with a 
duty. An active use is a present legal estate. 

ACTIVE CONCEALMENT. This implies a pur- 
pose or design accomplished by words or acts, 
while passive concealment consists in mere silence 
where there is a duty to speak. Vendt v. Duenke, 
Mo.App., 210 S.W. 2d 692, 699. 

Concealment becomes a fraud where it is effected by mis- 
leading and' deceptive talk, acts, or conduct, where it is 
accompanied by misrepresentations, or where, in addition 
to a party's silence, there is any statement, word, or act 
on his part which tends affirmatively to a suppression of 
the truth. Such conduct is designated active concealment. 
Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 
C.C.A.I1 1., 112 F.2d 302, 309. 

ACTIVE NEGLIGENCE. A term of extensive 
meaning obviously embracing many occurrences 
that would fall short of willful wrongdoing, or of 
crass negligence, for example, all inadvertent acts 
causing injury to others, resulting from failure 
to exercise ordinary care, likewise all acts the 
effects of which are misjudged or unforeseen, 
through want of proper attention, or reflection, 
and hence the term covers the acts of willful 
wrongdoing and also those which are not of that 
character. Cohen v. Noel, Tenn.App., 104 S.W. 2d 
1001, 1005. 

ACTIVE SERVICE. "Active service" in army 
does not necessarily mean actual service, but 
means service performed at direction of superior 
officer or officers while receiving emoluments to 
which soldier is entitled. United States v. Wood- 
worth, D.C.Mass., 36 F.Supp. 645, 646. 

ACTIVE TRUST. See Trust. 

ACTIVITY. A recreational "activity" is a physi- 
cal or gymnastic exercise, an agile performance, 
such as dancing. McClure v. Board of Education 
of City of Visalia, 38 Cal.App. 500, 176 P. 711, 712. 

ACTON BURNEL, STATUTE OF. In English 
law, a statute, otherwise called Statutum Merca- 
torum or de Mercatoribus the statute of the mer- 
chants, made at a parliament held at the castle or 
village of Acton Burnel in Shropshire, in the 1 1th 
year of the reign of Edward I. 2 Reeves, Eng. 
Law, 158-162. It was a statute for the collection 
of debts, the earliest of its class, being enacted in 
1283. A further statute for the same object, and 
known as De Mercatoribus, was enacted 13 Edw. 
I. (c. 3.). See Statute Merchant. 


52 



ACTUAL 


ACTOR. 

Old European Law 

A patron, proctor, advocate, or pleader; one 
who acted for another in legal matters; one 
who represented a party and managed his cause. 
An attorney, bailiff, or steward; one who man- 
aged or acted for another. The Scotch "doer" is 
the literal translation. 

Roman Law 

One who acted for another; one who attended 
to another's business; a manager or agent. A 
slave who attended to, transacted, or superintend- 
ed his master's business or affairs, received and 
paid out moneys, and kept accounts. Burrill. 

The word has a variety of closely-related meanings, 
very nearly corresponding with manager. Thus, actor 
domince, manager of his master's farm; cictor ecclesice, 
manager of church property; adores provinciarum, tax- 
gatherers, treasurers, and managers of the public debt. 

Actor ecclesice. — An advocate for a church; one who 
protects the temporal interests of a church. Actor villce 
was the steward or head-bailiff of a town or village. Cow- 
ell. 

Plaintiff or complainant. In a civil or private action the 
plaintiff was often called by the Romans "petitor;" in a 
public action (causa publica) he was called "accusator. " 
The defendant was called "revs, " both in private and pub- 
lic causes; this term, however, according to Cicero, (De 
Orat. 43,) might signify either party, as indeed we 
might conclude from the word itself. In a private action, 
the defendant was often called "adversarius, " but either 
party might be called so. 

Also, the term is used of a party who, for the time 
baing, sustains the burden of proof, or has the initiative in 
the suit. 

Actor qui contra regulam quid adduxit, non est 
audiendus. A plaintiff (or pleader) is not to be 
heard who has advanced anything against author- 
ity, (or against the rule.) 

Actor sequitur forum rei. According as rei is 
intended as the genitive of res, a thing, or reus, 
a defendant, this phrase means: The plaintiff fol- 
lows the forum of the property in suit, or the fo- 
rum of the defendant's residence. Branch, Max. 4. 
Home, Law Tr. 232; Story, Confl.L. § 325 k; 2 
Kent 462. 

ACTORE NON PROBANTE REUS ABSOLVI- 
TUR. When the plaintiff does not prove his case 
the defendant is acquitted (or absolved). Hob. 
103. 

ACTORI INCUMBIT ONUS PROBANDI. The 
burden of proof rests on the plaintiff, (or on the 
party who advances a proposition affirmatively.) 
Hob. 103. 

ACTORNAY. In old Scotch law, an attorney. 
Skene. 

ACTRIX. Lat. A female actor; a female plain- 
tiff. Calvinus, Lex. 

ACTS OF COURT. Legal memoranda made in 
the admiralty courts in England, in the nature of 
pleas. 

ACTS OF POSSESSION. To constitute adverse 
possession, acts of possession must be such as, 


if seen by the party whose claim is sought to be 
divested, would apprise him that the party doing 
the acts claimed the ownership of the property. 
Crosby v. City of Greenville, 183 Mich. 452, 150 
N.W. 246, 248. 

ACTS OF SEDERUNT. In Scotch law, ordinances 
for regulating the forms of proceeding, before the 
court of session, in the administration of justice, 
made by the judges, who have the power by virtue 
of a Scotch act of parliament passed in 1540. 
Ersk. Prin. § 14. 

ACTUAL. Real; substantial; existing presently 
in act, having a valid objective existence as op- 
posed to that which is merely theoretical or possi- 
ble. Ciaccio v. Hartman, 170 La. 949, 129 So. 540. 
Opposed to potential, possible, virtual, conceiv- 
able, theoretical, hypothetical, or nominal. Amer- 
ican Ins. Co. of Newark, N. J., v. Seminole County 
Board of Education, 51 Ga.App. 808, 181 S.E. 783, 
786. Something real, in opposition to construc- 
tive or speculative; something existing in act. 
Astorv. Merritt, 4 S.Ct. 413, 111 U.S. 202, 28 L. 
Ed. 401. Existing in act, fact, or reality. Guar- 
isco v. Massachusetts Bonding & Insurance Co., 
4 N.Y.S.2d 788, 792, 167 Misc. 875. 

It is used as a legal term in contradistinction to virtual 
or constructive as of possession or occupation; Cleveland 
v. Crawford, 7 Hun (N.Y.) 616; or an actual settler, 
which implies actual residence; ' McIntyre v. Sherwood, 82 
Cal. 139, 22 Pac. 937. An actual seizure means nothing 
more than seizure, since there was no fiction of construc- 
tive seizure before the act; L.R. 6 Exch. 203. 

Actually is opposed to seemingly, pretendedly, or feign- 
edly, as actually engaged in farming means really, truly, 
in fact; In re Strawbridge & Mays, 39 Ala. 367; Ayer & 
Lord Tie Co. v. Commonwealth, 208 Ky. 606, 271 S.W. 693, 
694. 

As to actual "Bias," "Damages," "Delivery," "Fraud," 
"Malice," "Notice," "Occupation," "Ouster," "Posses- 
sion," "Residence," "Seisin," "Total Loss," see those ti- 
tles. 

ACTUAL AUTHORITY. In the law of agency, 
such authority as a principal intentionally confers 
on the agent, or intentionally or by want of ordi- 
nary care allows the agent to believe himself to 
possess. National Cash Register Co. v. Wichita 
Frozen Food Lockers, Tex.Civ.App., 172 S.W. 2d 
781, 787. Includes both express and implied au- 
thority. Grismore v. Consolidated Products Co., 
232 Iowa 328, 5 N.W.2d 646, 651. 

ACTUAL BIAS. See Bias. 

ACTUAL CASH VALUE. The fair or reasonable 
cash price for which the property could be sold 
in the market, in the ordinary course of business, 
and not at forced sale; the price it will bring in 
a fair market after reasonable efforts to find a 
purchaser who will give the highest price. Pea- 
vy-Wilson Lumber Co. v. Jackson, 161 La. 669, 109 
So. 351, 352. What property is worth in money, 
allowing for depreciation. Glens Falls Ins. Co. 
of New York v. Garner, 229 Ala. 39, 155 So. 533, 
536. Ordinarily, "actual cash value," "fair mar- 
ket price," and "market value" are synonymous 
terms. Butler v. JEtna Ins. Co. of Hartford, 
Conn., 64 N.D. 764, 256 N.W. 214, 218. 


53 



ACTUAL 


ACTUAL CHANGE OF POSSESSION. In stat- 
utes of frauds, an open, visible, and unequivocal 
change of possession, manifested by the usual out- 
ward signs, as distinguished from a merely for- 
mal or constructive change. Stevens v. Irwin, 
15 Cal. 503, 76 Am.Dec. 500. 

ACTUAL COST. The actual price paid for goods 
by a party, in the case of a real bona fide pur- 
chase, and not the market value of the goods. 
Ogunquit Village Corporation v. Inhabitants of 
Wells, 123 Me. 207, 122 A. 522, 524. 

"Actual cost" has no common-law significance, and it is 
without any well-understood trade or technical meaning. 
It is a general or descriptive term which may have vary- 
ing meanings according to the circumstances in which it is 
used. It imports the exact sum expended or loss sus- 
tained rather than the average or proportional part of the 
cost. Its meaning may be restricted to overhead or ex- 
tended to other items. State v. Northwest Poultry & Egg 
Co., 203 Minn. 438, 281 N.W. 753, 755. 

ACTUAL DELIVERY. See Delivery. 

ACTUAL EVICTION . An actual expulsion of the 
tenant out of all or some part of the demised 
premises; a physical ouster or dispossession from 
the very thing granted or some substantial part 
thereof. Cauley v. Northern Trust Co., 315 111. 
App. 307, 43 N.E.2d 147, 155, 315. 

An arbitrary and willful interference with tenant's rights 
by landlord is essential. Kusche v. Sabin, City Ct., New 
Rochelle, 6 N.Y.S.2d 771, 773. Deprivation of beneficial 
enjoyment of property in whole or in part or exclusion 
from some portion of demised premises. Kusche v. Sabin, 
City Ct., New Rochelle, 6 N.Y.S.2d 771, 773. Dispossession 
by process of law, Stanton v. Conley, 278 N.Y.S. 275, 277, 
244 App.Div. 84. Expulsion or exclusion from demised 
premises. Liberal Savings & Loan Co. v. Frankel Realty 
Co., 137 Ohio St. 489, 30 N.E.2d 1012, 1017, physical expul- 
sion by landlord. General American Life Ins. Co. v. North 
American Mfg. Co., 320 111. App. 488, 51 N.E.2d 619, wrong- 
ful entry on premises by lessor is necessary. Title & Trust 
Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909. 

ACTUAL FRAUD . See Fraud. 

ACTUAL LOSS. One resulting from the real 
and substantial destruction of the property in- 
sured. 

ACTUAL MARKET VALUE. In custom laws, 
the price at which merchandise is freely offered 
for sale to all purchasers; the price which the 
manufacturer or owner would have received for 
merchandise, sold in the ordinary course of trade 
in the usual wholesale quantities. United States 
v. Sischo, D.C.Wash., 262 F. 1001, 1011. 

ACTUAL NOTICE. See Notice. 

ACTUAL POSSESSION. See Possession. 

ACTUAL PRACTICE. Active, open and notori- 
ous engagement in business, vocation or profes- 
sion as opposed to casual, occasional or clandes- 
tine practice. State ex rel. Laughlin v. Washing- 
ton State Bar Ass'n, 26 Wash. 2d 914, 176 P.2d 
30 1_, 309. 

ACTUAL RESIDENCE . The abode, where one 
actually lives, not mere naked legal residence. 
In Re McGrath, 243 App.Div. 803, 278 N.Y.S. 135. 


ACTUAL SALE. Lands are "actually sold" at a. 
tax sale, so as to entitle the treasurer to the stat- 
utory fees, when the sale is completed; when he 
has collected from the purchaser the amount of 
the bid. Miles v. Miller, 5 Neb. 272. 

ACTUAL VALUE. "Actual value" to be awarded 
in condemnation proceeding is price that would 
probably result from negotiations between will- 
ing seller and willing buyer. State v. Hoblitt, 
87 Mont. 403, 288 P. 181, 185. "Actual value,", 
"market value," "fair value," and the like may 
be used as convertible terms. Kerr v. Clinch- 
field Coal Corporation, 169 Va. 149, 192 S.E. 741, 
744. "Saleable value," "actual value," "cash 
value," and others used in directions to tax as- 
sessing officers, all mean the same thing. In re 
Lang Body Co., C.C.A.Ohio, 92 F.2d 338, 340. 

ACTUAL VIOLENCE. An assault with actual 
violence is an assault with physical force put in 
action, exerted upon the person assailed. The 
term violence is synonymous with physical force, 
and the two are used interchangeably in rela- 
tion to assaults. Tanner v. State, 24 Ga.App. 132, 
100 S.E. 44. 

ACTUARIUS. In Roman law, a notary or clerk. 
One who drew the acts or statutes, or who wrote 
in brief the public acts. 

An officer who had charge of the public baths; 
an officer who received the money for the soldiers, 
and distributed it among them; a notary. 

An actor, which see. Du Cange. 

ACTUARY. In English ecclesiastical law, a clerk 
that registers the acts and constitutions of the 
lower house of convocation; or a registrar in a 
court Christian. 

Also an officer appointed to keep savings banks 
accounts; the computing officer of an insurance 
company; a person skilled in calculating the val- 
ue of life interests, annuities, and insurances. 
Champagne v. Unity Industrial Life Ins. Co., La. 
App., 161 So. 52, 53. 

ACTUM. Lat. A deed; something done. 

ACTUS. In the civil law, an act or action. Non 
tantum verbis, sed etiam actu; not only by words, 
but also by act. Dig. 46, 8. 5. 

A species of right of way, consisting in the right 
of driving cattle, or a carriage, over the land 
subject to the servitude. Inst.. 2, 3, pr. It is some- 
times translated a "road," and included the kind 
of way termed "iter, " or path. Lord Coke, who. 
adopts the term "actus" from Bracton, defines it 
a foot and horse way, vulgarly called "pack and 
prime way;" but distinguishes it from a cart-way. 
Co.Litt. 56a; Boyden v. Achenbach, 79 N.C. 539. 

In old English law, an act of parliament; a 
statute. 8 Coke 40. A distinction, however, was 
sometimes made between actus and statutum. 
Actus parliamenti was an act made by the lords 
and commons; and it became statutum, when it 
received the king's consent. Barring. Obs. St. 46, 
note b. 


54 



AD CULPAM 


Actus curiae neminem gravabit. An act of the 
court shall prejudice no man. Jenk.Cent. 1 18. 
Where a delay in an action is the act of the court, 
neither party shall suffer for it. 

Actus Del nemini est damnosus. The act of God 
is hurtful to no one. 2 Inst. 287. That is, a per- 
son cannot be prejudiced or held responsible for 
an accident occurring without his fault and at- 
tributable to the "act of God." See Act of God. 

Actus Del nemini facit injuriam. The act of 
God does injury to no one. 2 Bl.Comm. 122. A 
thing which is inevitable by the act of God, which 
no industry can avoid, nor policy prevent, will 
not be construed to the prejudice of any person in 
whom there was no laches. Broom, Max. 230. 

Actus inceptus, cujus perfectio pendet ex vol- 
untate partium, revocari potest; si autem pen- 
det ex voluntate testiae persona , vel ex contin- 
genti, revocari non potest. An act already be- 
gun, the completion of which depends on the 
will of the parties, may be revoked; but if it 
depend on the will of a third person, or on a con- 
tingency, it cannot be revoked. Bac.Max. reg. 20. 

Actus judiciarius coram non judice irritus hab- 
etur, de ministeriali autem a quocunque provenit 
ratum esto. A judicial act by a judge without 
jurisdiction is void; but a ministerial act, from 
whomsoever proceeding, may be ratified. Lofft, 
458. 

Actus legis nemini est damnosus. The act of 
the law is hurtful to no one. An act in law shall 
prejudice no man. 2 Inst. 287. 

Actus legis nemini facit injuriam. The act of 
the law does injury to no one. 5 Coke, 1 16. 

Actus legitimi non recipiunt modum. Acts re- 
quired to be done by law do not admit of qualifica- 
tion. Hob. 153; Branch, Princ. 

Actus me invito factus non est meus actus. An 
act done by me, against my will, is not my act. 
Branch, Princ. 

Actus non facit reum, nisi mens sit rea. An act 
does not make [the doer of it] guilty, unless the 
mind be guilty; that is, unless the intention be 
criminal. 3 Inst. 107. The intent and the act 
must both concur to constitute the crime. Lord 
Kenyon, C. J., 7 Term 514; Broom, Max. 306. 

Actus repugnus non potest in esse produci. A 
repugnant act cannot be brought into being, i. e., 
cannot be made effectual. Plowd. 355. 

Actus servi in its quibus opera ejus communiter 
adhibita est, actus domini habetur. The act of a 
servant in those things in which he is usually em- 
ployed, is considered the act of his master. Lofft, 
227. 

A. D. An abbreviation of Anno Domini meaning 
in the year of our Lord. Commonwealth v. Tray- 
lor, 20 Ky.Law Rep. 97, 98, 45 S.W. 356. 


AD. Lat. At; by; for; near; on account of; 
to; until; upon; with relation to or concerning. 

AD ABUNDANTIOREM CAUTELAM. L. Lat. 
For more abundant caution. 2 How. State Tr. 
1182. Otherwise expressed, ad cautelam ex super- 
abundanti. Id. 1163. 

AD ADMITTENDUM CLERICUM. For the ad- 
mitting of the clerk. A writ in the nature of an 
execution, commanding the bishop to admit his 
clerk, upon the success of the latter in a quare 
impedit. 

AD ALIUD EXAMEN. To another tribunal; be- 
longing to another court, cognizance, or jurisdic- 
tion. 

AD ALIUM DIEM. At another day. A common 
phrase in the old reports. Yearb. P. 7 Hen. VI. 13. 

AD ASSISAS CAPIENDAS. To take assises; to 
take or hold the assises. Bract, fol. 1 10a; 3 Bl. 
Comm. 185, 352. Ad assisam capiendam; to take 
an assise. Bract, fol. 110b. 

AD AUDIENDAM CONSIDERATIONEM 
CURIIE. To hear the judgment of the court. 
Bract. 383 b. 

AD AUDIENDUM ET DETERMINANDUM. To 
hear and determine. St. Westm. 2, cc. 29, 30. 4 
Bla.Com. 278. 

AD BARRAM. To the bar; at the bar. 3 How. 
State Tr. 112. 

AD BARRAM EVOCATUS. Called to the bar. 1 
Ld.Raym. 59. 

AD CAMPI PARTEM. For a share of the field 
or land, for champert. Fleta, lib. 2, c. 36, § 4. 

AD CAPTUM VULGI. Adapted to the common 
understanding. 

AD COLLIGENDUM. For collecting; as an ad- 
ministrator or trustee ad colliqendum. 2 Kent 
414. 

AD COLLIGENDUM BONA DEFUNCT'. For 
collecting the goods of the deceased. See Admin- 
istration of Estates. 

AD COMMUNE NOCUMENTUM. To the com- 
mon nuisance. Broom & H.Com. 196. 

AD COMMUNEM LEGEM. At common law, the 
name of a writ of entry (now obsolete) brought 
by the reversioners after the death of the life 
tenant, for the recovery of lands wrongfully 
alienated by him. 

AD COMPARENDUM. To appear. Ad compar- 
endum, et ad standum ju.ri, to appear and to 
stand to the law, or abide the judgment of the 
court. Cro.Jac. 67. 

AD COMPUTUM REDDENDUM. To render an 
account. St.Westm. 2, c. 11. 

AD CULPAM. Until misbehavior. 


55 



AD CURIAM 


AD CURIAM. At a court. 1 Salk. 195. To court. 
Ad curiam vocare, to summon to court. 

AD CUSTAGIA. At the costs. Toullier; Cowell; 
Whishaw. 

AD CUSTOM. At the cost. 1 Bl.Comm. 314. 

AD DAMNUM. In pleading. "To the damage." 
The technical name of that clause of the writ 
or declaration which contains a statement of the 
plaintiffs money loss, or the damages which he 
claims. Vincent v. Life Ass'n, 75 Conn. 650, 55 
Atl. 177. 

AD DEFENDENDUM. To defend. 1 Bl.Comm. 
227. 

AD DIEM. At a day; at the day. Townsh.Pl. 23. 
Ad alium diem. At another day. Y.B. 7 Hen. VI, 
13. Ad certum diem, at a certain day. 2 Strange, 
747. Solvit ad diem; he paid at or on the day. 1 
Chit.Pl. 485. 

AD EA QUZE FREQUENTIUS ACCIDUNT JURA 
ADAPTANTUR. Laws are adapted to those cases 
which most frequently occur. 2 Inst. 137; Broom, 
Max. 43. 

Laws are adapted to cases which frequently occur. A 
statute, which, construed according to its plain words, is, 
in all cases of ordinary occurrence, in no degree incon- 
sistent or unreasonable, should not be varied by construc- 
tion in every case, merely because there is one possible 
but highly improbable case in which the laW would oper- 
ate with great severity and against our notions of justice. 
The utmost that can be contended is that the construction 
of the statute should be varied in that particular case, so 
as to obviate the injustice. 7 Exch. 549; 8 Exch. 778. 

AD EFFECTUM. To the effect, or end. Co.Litt. 
204a; 2 Crabb, Real Prop. p. 802, § 2143. Ad 
effectum sequentem, to the effect following. 2 
Salk. 417. 

AD EVERSIONEM JURIS NOSTRI. To the over- 
throw of our right. 2 Kent 9 1 . 

AD EXCAMBIUM. For exchange; for compensa- 
tion. Bract, fol. 12b, 37b. 

AD EXHIEREDATIONEM. To the disherison, or 
disinheriting; to the injury of the inheritance. 3 
Bl.Comm. 288. 

Formal words in the old writ of waste, which calls upon, 
the tenant to appear and show cause why he hath commit- 
ted waste and destruction in the place named, ad exhcere- 
dationem, etc. ; Fitzherbert, Nat. Bev. 55. 

AD EXITUM. At issue; at the end (of the plead- 
ings.) Steph.Pl. 24. 

AD FACIENDUM. To do. Co.Litt. 204a. Ad 
faciendum, sub jiciendum et recipiendum; to do, 
submit to, and receive. Ad faciendam juratamil- 
lam; to make up that jury. Fleta, lib. 2, c. 65, 
§ 12 . 

AD FACTUM PR 1 ESTANDUM . In Scotch law, a 
name descriptive of a class of obligations marked 
by unusual severity. A debtor ad fac. prces. is 
denied the benefit of the act of grace, the privilege 
of sanctuary, and the cessio bonorum; Erskine, 
Inst. lib. 3, tit. 3, § 62; Karnes, Eq. 216. 


AD FEODI FIRMAM. To fee farm. Fleta, lib. 2, 
c. 50, § 30. 

AD FIDEM. In allegiance. 2 Kent, Comm. 56. 
Subjects born adfidem are those born in alle- 
giance. 

AD FILUM AQU1E. To the thread of the water; 
to the central line, or middle of the stream. 
Usque ad filum aquce, as far as the thread of the 
stream. Bract, fol. 208b; 235a. A phrase of fre- 
quent occurrence in modern law; of which ad 
medium filum aquce (q. v.) is another form, and 
etymologically more exact. 

AD FILUM VIZE. To the middle of the way; to 
the central line of the road. Parker v. Inhabi- 
tants of Framingham, 8 Mete. (Mass.) 260. 

AD FINEM. Abbreviated ad fin. To the end. 
It is used in citations to books, as a direction to 
read from the place designated to the end of the 
chapter, section, etc. Ad finem litis, at the end 
of the suit. 

AD FIRMAM. To farm. Derived from an old 
Saxon word denoting rent. Ad firmam noctis was 
a fine or penalty equal in amount to the estimated 
cost of entertaining the king for one night. Co- 
well. Ad feodi firmam, to fee farm. Spelman. 

AD FUNDANDAM JURISDICTIONEM. To make 
the basis of jurisdiction. [1905] 2 K.B. 555. 

AD GAOLAS DELIBERANDAS. To deliver the 
gaols; to empty the gaols. Bract, fol. 109b. Ad 
gaolam deliberandam; to deliver the gaol; to 
make gaol delivery. Bract, fbl. 110b. 

AD GRAVAMEN. To the grievance, injury, or 
oppression. Fleta, lib. 2, c. 47, § 10. 

AD HOC. For this; for this special purpose. 

An attorney ad hoc, or a guardian or curator ad hoc,, 
is one appointed for a special purpose, generally to repre- 
sent the client or infant in the particular action in which 
the appointment is made. Bienvenu v. Insurance Co., 33 
La. Ann. 212. 

AD HOMINEM. To the person. A term used in 
logic with reference to a personal argument. 

AD HUNC DIEM. At this day. 1 Leon. 90. 

AD IDEM. To the same point, or effect. Ad idem 
facit, it makes to or goes to establish the same 
point. Bract, fol. 27b. 

AD INDE. Thereunto. Ad inde requisitus, there- 
unto required. Townsh.Pl. 22. 

AD INFINITUM. Without limit; to an infinite 
extent; indefinitely. 

AD INQUIRENDUM. To inquire; a writ of in- 
quiry; a judicial writ, commanding inquiry to be 
made of anything relating to a cause pending in 
court. Cowell. 

AD INSTANTIAM. At the instance. 2 Mod. 44. 
Ad instantiam partis, at the instance of a party. 
Hale, Com. Law, 28. 


56 



AD QUOD DAMNUM 


AD INTERIM. In the meantime. An officer ad 
interim is one appointed to fill a temporary va- 
cancy, or to discharge the duties of the office dur- 
ing the absence or temporary incapacity of its reg- 
ular incumbent. 

AD JUDICIUM. To judgment; to court. Ad judi- 
cium provocare; to summon to court; to com- 
mence an action; a term of the Roman law. 
Dig. 5, 1, 13, 14. 

AD JUNGENDUM AUXILIUM. To joining in 
aid; to join in aid. See Aid Prayer. 

AD JURA REGIS. To the rights of the king; a 
writ which was brought by the king's clerk, pre- 
sented to a living against those who endeavored to 
eject him, to the prejudice of the king's title. 
Reg. Writs 61. 

AD LARGUM. At large: as, title at large; assize 
at large. See Dane, Abr. c. 144, art. 16, § 7. Also 
at liberty; free, or unconfined. Ire ad largum, to 
go at large. Plowd. 37. 

At large; giving details, or particulars; in 
extenso. A special verdict was formerly called a 
verdict at large. Plowd. 92. 

AD LIBITUM. At pleasure. 3 Bla.Com. 292. 

AD LITEM. For the suit; for the purposes of the 
suit; pending the suit. A guardian ad litem is a 
guardian appointed to prosecute or defend a suit 
on behalf of a party incapacitated by infancy or 
otherwise. 

AD LUCRANDUM VEL PERDENDUM. For gain 
or loss. Emphatic words in the old warrants of 
attorney. Reg. Orig. 21, et seq. Sometimes ex- 
pressed in English, "to lose and gain." Plowd. 
201 . 

AD MAJOREM CAUTELAM. For greater se- 
curity. 2 How. State Tr. 1182. 

AD MANUM. At hand; ready for use. Et quer- 
ens sectam habeat ad manum; and the plaintiff 
immediately have his suit ready. Fleta, lib. 2, 
c. 44, § 2. 

AD MEDIUM FILUM AQU,E. To the middle 
thread of the stream. See Ad Filum Aquas. 

AD MEDIUM FILUM VISE. To the middle thread 
of the way. 

AD MELIUS INQUIRENDUM. A writ directed to 
a coroner commanding him to hold a second in- 
quest. See 45 Law J.Q.B. 711. 

AD MORDENDUM ASSUETUS. Accustomed to 
bite. Cro.Car. 254. A material averment in dec- 
larations for damage done by a dog to persons or 
animals. 1 Chit.Pl. 388; 2 Chit.Pl. 597. 

AD NOCUMENTUM. To the nuisance, or annoy- 
ance; to the hurt or injury. Fleta, lib. 2, c. 52, 
§ 19. Ad nocumentum liberi tenementi sui, to the 
nuisance of his freehold. Formal words in the old 
assise of nuisance. 3 Bl.Comm. 221. 


AD OFFICIUM JUSTICIARIORUM SPECTAT, 
UNICUIQUE CORAM EIS PLACITANTI JUS- 
TITIAM EXHIBERE. It is the duty of justices 
to administer justice to every one pleading before 
them. 2 Inst. 451. 

AD OMISSA VEL MALE APPRETI ATA . With 
relation to omissions or wrong interpretations. 3 
Ersk.Inst. 9, § 36. 

AD OPUS. To the work. See 21 Harv.L.Rev. 264, 
citing 2 Poll. & Maitl. 232 et seq.; Use. 

AD OSTENDENDUM. To show. Formal words 
in old writs. Fleta, lib. 4, c. 65, § 12. 

AD OSTIUM ECCLESIZE. At the door of the 
church. One of the five species of dower formerly 
recognized by the English law. 1 Washb.Real 
Prop. 149; 2 Bl.Comm. 132. 

AD PIOS USUS. Lat. For pious (religious or 
charitable) uses or purposes. Used with reference 
to gifts and bequests. 

AD PROSEQUENDAM. To prosecute. 11 .Mod. 
362. 

Ad proximum antecedens fiat relatio nisi impedia- 
tur sententia. Relative words refer to the near- 
est antecedent, unless it be prevented by the con- 
text. Jenk.Cent. 180; Brown v. Brown, Del., 3 
Terry 157, 29 A.2d 149, 153. 

AD PUNCTUM TEMPORIS. At the point of 
time. Sto.Bailm. § 263. 

AD QUIERIMONIAM. On complaint of. 

AD QUAESTIONEM FACTI NON RESPONDENT 
JUDICES, AD QUAESTIONEM JURIS NON RE- 
SPONDENT JURATORES. Means that juries 
must answer to questions of fact and judges to 
questions of law. Ex parte United States, C.C.A. 
Wis., 101 F.2d 870, 874. 

AD QUEM. To which. 

A term used in the computation of time or distance, as 
correlative to a quo; denotes the end or terminal point. 
See A Quo. 

The terminus a quo is the point of beginning or de- 
parture; the terminus ad quern , the end of the period or 
point of arrival. 

AD QUESTIONES FACTI NON RESPONDENT 
JUDICES; AD QUESTIONES LEGIS NON RE- 
SPONDENT JURATORES. Judges do not answer 
questions of fact; juries do not answer questions 
of law. 8 Coke, 308; Co.Litt. 295. 

AD QUESTIONES LEGIS JUDICES, ET NON 
JURATORES, RESPONDENT. Judges, and not 
jurors, decide questions of law. 7 Mass. 279. 

AD QUOD CURIA CONCORDAVIT. To which 
the court agreed. Yearb.P. 20 Hen. VI. 27. 

AD QUOD DAMNUM. The name of a writ for- 
merly issuing from the English chancery, com- 
manding the sheriff to make inquiry "to what 
damage" a specified act, if done, will tend. 


57 



AD QUOD DAMNUM 


It is a writ which ought to be sued before the king 
grants certain liberties, as a fair, market, or such like, 
which may be prejudicial to others, and thereby it should 
be inquired whether it will be a prejudice to grant them, 
and to whom it will be prejudicial, and what prejudice 'will 
come thereby. Termes de la Ley. 

There is also another writ of ad quod damnum, 
if any one will turn a common highway and lay 
out another way as beneficial. Termes de la Ley. 

The writ of ad quod damnum is a common-law writ, in 
the nature of an original writ, issued by the prothonotary, 
and in condemnation proceedings is returnable to and sub- 
ject to confirmation of the Superior Court. Elbert v. Scott, 
Del., 5 Boyce 1, 90 A. 587. 

AD QUOD NON FUIT RESPONSUM. To which 
there was no answer. 

A phrase used in the reports, where a point advanced 
in argument by one party was not denied by the other; 
or where a point or argument of counsel was not met or 
notice by the court; or where an objection was met by the 
court, and not replied to by the counsel who raised it. 3 
Coke, 9; 4 Coke, 40. 

AD RATIONEM PONEJE. To cite a person to 
appear. A technical expression in the old rec- 
ords of the Exchequer, signifying, to put to the 
bar and interrogate as to a charge made; to ar- 
raign on a trial. 

AD RECOGNOSCENDUM. To recognize. Fleta, 
lib. 2, c. 65, § 12. Formal words in old writs. 

AD RECTE DOCENDUM OPORTET, PRIMUM 
INQUIRERE NOMINA, QUIA RERUM COGNI- 
TIO A NOMINIBUS RERUM DEPENDET. In 
order rightly to comprehend a thing, inquire 
first into the names, for a right knowledge of 
things depends upon their names. Co.Litt. 68. 

AD RECTUM. (L. Lat.) To right. To do right. 
To meet an accusation. To answer the demands 
of the law. Habeant eos ad rectum. They shall 
render themselves to answer the law, or to make 
satisfaction. Bract, fol. 124 b. 

AD REPARATIONEM ET SUSTENTATIONEM. 
For repairing and keeping in suitable condition. 

AD RESPONDENDUM. For answering; to make 
answer; words used in certain writs employed 
for bringing a person before the court to make 
answer in defense in a proceeding, as in habeas 
corpus ad respondendum and capias ad responden- 
dum, q. v. 

AD SATISFACIENDUM. To satisfy. The em- 
phatic words of the writ of capias ad satisfacien- 
dum, which requires the sheriff to take the person 
of the defendant to satisfy the plaintiffs claim. 

AD SECTAM. At the suit of. Commonly abbre- 
viated to ads. 

Used in entering and indexing the names of cases, where 
it is desired that the name of the defendant should come 
first. Thus, "B. ads. A." indicates that B. is defendant in 
an action brought by A., and the title so written would 
be an inversion of the more usual form "A. v. B." 

AD STUDENDUM ET ORANDUM. For studying 
and praying; for the promotion of learning and 
religion. A phrase applied to colleges and uni- 
versities. 1 Bl.Comm. 467. 


AD TERMINUM ANNORUM. For a term of 
years. 

AD TERMINUM QUI PRIETERIT. For a term 
which has passed. Words in the Latin form of the 
writ of entry employed at common law to recover, 
on behalf of a landlord, possession of premises, 
from a tenant holding over after the expiration of 
the term for which they were demised. See Fitzh. 
Nat.Brev. 201. 

AD TRISTEM PARTEM STRENUA EST SUS- 
PICIO. Suspicion lies heavy on the unfortunate 
side. 

AD TUNC ET IBIDEM. In pleading, the Latin 
name of that clause of an indictment containing 
the statement of the subject-matter "then and 
there being found." 

AD ULTIMAN VIM TERMINORUM . To the most 
extended import of the terms; in a sense as uni- 
versal as the terms will reach. 2 Eden, 54. 

AD USUM ET COMMODUM. To the use and 
benefit. 

AD VALENTIAM . To the value. See Ad Va- 
lorem. 

AD VALOREM. According to value. Powell v. 
Gleason; Ariz., 74 P.2d 47, 50, 114 A.L.R. 838. 

Duties are either ad valorem or specific; the former 
when the duty is laid in the form of a percentage on the 
value of the property ; the latter where it is imposed as a 
fixed sum on each article of a class without regard to its 
value. The term ad valorem tax means a tax or duty upon 
the value of the article or thing subject to taxation. Ar- 
thur v. Johnston, 185 S.C. 324, 194 S.E. 151, 154. 

AD VENTREM INSPICIENDUM. To inspect the 
womb. A writ for the summoning of a jury of 
matrons to determine the question of pregnancy. 

AD VIM MAJOREM VEL AD CASUS FORTUI- 
TUS NON TENETUR QUIS, NISI SUA CULPA 
INTERVENERIT. No one is held to answer for 
the effects of a superior force, or of accidents, un- 
less his own fault has contributed. Fleta, lib. 2, 
c. 72, § 16. 

AD VITAM. For life. Bract, fol. 13b. Infeodo, 
vel ad vitam; in fee, or for life. Id. 

AD VITAM AUT CULPAM. For life or until 
fault. Words descriptive of a tenure of office 
"for life or good behavior," equivalent to quam- 
diu bene se gesserit. 

AD VOLUNTATEM. At will. Bract, fol. 27a. Ad 
voluntatem domini, at the will of the lord. 

AD WARACTUM. To fallow. Bract, fol. 228b. 
See Waractum. 

ADAPTED. Capable of use. People v. Dorring- 
ton, 221 Mich. 571, 191 N.W. 831, 832. Indicates 
that the object referred to has been made suit- 
able; has been made to conform to ; has been 
made fit by alteration. Raynor v. United States, 
C.C.A.Ind., 89 F.2d 469, 471. 


58 



ADDITIONAL 


ADAWLUT. Corrupted from Adalat, justice, eq- 
uity; a court of justice. The terms "Dewanny 
Adawlut" and "Foujdarry Adawlut" denote the 
civil and criminal courts of justice in India. 
Wharton, 

ADCORDABILIS DENARII. Money paid by a 
vassal to his lord upon the selling or exchanging 
of a feud. Enc. Lond, 

ADD. To unite; attach; annex; join. Board 
of Com'rs of Hancock County v. State, 119 Ind. 
473, 22 N.E. 10. 

ADDENDUM. A thing that is added or to be add- 
ed; a list or section consisting of added material. 

ADDICERE. Lat. In the civil law, to adjudge or 
condemn; to assign, allot, or deliver; to sell. 
In the Roman law, addico was one of the three 
words used to express the extent of the civil 
jurisdiction of the praetors. 

ADDICT. As defined in Acts 1894, No. 157, one 
who has acquired the habit of using spirituous 
liquors or narcotics to such an extent as to de- 
prive him of reasonable self-control. Interdiction 
of Gasquet, 147 La. 722, 85 So. 884, 888. 

ADDICTIO. In the Roman law, the giving up to 
a creditor of his debtor's person by a magistrate; 
also the transfer of the (deceased) debtor's goods 
to one who assumes his liabilities. 

Additio probat minoritatem. An addition [to a 
name] proves or shows minority or inferiority. 

4 Inst. 80; Wing. Max. 211, max. 60. That is, if it 
be said that a man has a fee tail, it is less than if 
he has the fee. 

This maxim is applied by Lord Coke to courts, and, 
terms of law; minoritas being understood in the sense of 
difference, inferiority, or qualification. Thus, the style 
of the king's bench is coram rege, and the style of the 
court of chancery is coram domino rege in cancellaria; 
the addition showing the difference. 4 Inst. 80. By the 
word "fee" is intended fee-simple , fee-tail not being in- 
tended by it, unless there, be added to it the addition of 
the word "tail." 2 Bl.Comm. 106; Litt. § 1. 

ADDITION. Implies physical contact, something 
added to another. Structure physically attached 
to or connected with building itself. Mack v. 
Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Washington 
Loan & Trust Co. v. Hammond, 51 App.D.C. 260, 
278 F. 569, 571. 

Extension; increase; augmentation. Meyering 
v. Miller, 330 Mo. 885, 51 S.W.2d 65, 66. 

That which has become united with or a part 
of. Judge v. Bergman, 258 111. 246, 101 N.E. 574, 
576. 

French Law 

A supplementary process to obtain additional 
information. Guyot, Repert. 

Insurance 

The word "addition," as applied to buildings, 
usually means a part added or joined to a main 
building. Agnew v. Sun Ins. Office, 167 Wis. 456, 
167 N.W. 829. It may also apply to buildings ap- 


purtenant to some other building though not ac- 
tually in physical contact therewith. Taylor v. 
Northwestern Nat. Ins. Co., 34 Cal.App. 471, 167 
P. 899. Not limited to structures physically a part 
of the main building. Gertner v. Glens Falls Ins. 
Co., 184 N.Y.S. 669, 670, 193 App.Div. 836, 

Liens 

Within the meaning of the mechanic's lien law, 
an "addition" to a building must be a lateral ad- 
dition. Lake & Risley Co. v. Still, 7 N.J.Misc. 47, 
144 A. 110. It must occupy ground without the 
limits of the building to which it constitutes an ad- 
dition, so that the lien shall be upon the building 
formed by the addition and the land upon which 
it stands. Updike v. Skillman, 27 N.J.L. 132. 
See also, Lamson v. Maryland Casualty Co., 196 
Iowa 1185, 194 N.W. 70, 71. 

An alteration in a former building, by adding to its 
height, or to its depth, or to the extent of its interior ac- 
commodations, is merely an "alteration," and not an "ad- 
dition." Putting a new story on an old building is not an 
addition. Updike v. Skillman, 27 N.J.L. 132. See, also, 
Lamson v. Maryland Casualty Co., 196 Iowa 1185, 194 N.W. 
70, 71. 

Did not include new livestock acquired by mortgagor aft- 
er execution of mortgage. American State Bank of Water- 
town v. Boyle, 212 Minn. 293, 4 N.W.2d 108, 109. 

Name 

Whatever is added to a man's name by way of 
title or description. Cowell. 

In English law, there are four kinds of additions, — addi- 
tions of estate, such as yeoman, gentleman, esquire; ad- 
ditions of degree, or names of dignity, as knight, earl, mar- 
quis, duke; additions of trade, mystery, or occupation, as 
scrivener, painter, mason, carpenter; and additions of 
place of residence, as London, Chester, etc. The only ad- 
ditions recognized in American law are those of mystery 
and residence. 

At common law there was no need of addition in any 
case; 2 Ld.Raym. 988; it was required only by stat. 1 
Hen. V. c. 5, in cases where process of outlawry lies. In 
all other cases it is only a description of the person, and 
common reputation is sufficient; 2 Ld.Raym. 849. 

ADDITIONAL. This term embraces the idea of 
joining or uniting one thing to another, so as 
thereby to form one aggregate. Ex parte Boddie, 
200 S.C. 379, 21 S.E.2d 4, 8. 

"Additional security" imports a security, which, united 
with or joined to the former one, is deemed to make it, 
as an aggregate, sufficient as a security from the begin- 
ning. State v. Hull, 53 Miss. 626; Searcy v. Cullman 
County, 196 Ala. 287, 71 So. 664, 665. 

ADDITIONAL BURDEN. See Eminent Domain. 

ADDITIONAL INSURED. A person using anoth- 
er's automobile, which is covered by liability 
policy containing statutory omnibus clause, only 
when insured's permission is expressly or implied- 
ly given for particular use. Stewart v. City of Rio 
Vista, 72 Cal.App. 2d 279, 164 P.2d 274, 275. 

Driver chosen by friend to whom automobile was en- 
trusted by husband who had possession with direct permis- 
sion of wife in whose name record title lay was not ad- 
ditional insured. Fox v. Crawford, Ohio App., 80 N.E. 2d 
187, 189. 

Where driver of automobile at time it struck pedestrian 
was using automobile for his own purpose after having 
received permission from owner only to get automobile 


59 



ADDITIONAL 


started and return automobile to owner's home, driver was 
not additional insured. Howe v. Farmers Auto. Inter-In- 
surance Exchange; Wash., 202 P.2d 464, 472. 

ADDITIONAL LEGACY. See Legacy. 

ADDITIONAL SERVITUDE. The imposition of 
a new and additional easement or servitude on 
land originally taken by eminent domain proceed- 
ings, a use of a different character, for which 
owner of property is entitled to compensation. S. 
D. Childs 8s Co. v. City of Chicago, 198 Ill.App. 
590, 593; Williams v. Meridan Light 8s Ry. Co., 
110 Miss. 174, 69 So. 596, 597. 

ADDITIONAL WORK. Of nature involved in 
modifications and changes, not independent proj- 
ect. Maryland Casualty Co. v. City of South Nor- 
folk, C.C.A.Va., 54 F.2d 1032, 1037. Work which 
results from a change or alteration in plans con- 
cerning work which has to be done under a con- 
tract, while "extra work" relates to work which is 
not included within the contract itself. De Mar- 
tini v. Elade Realty Corp., Co.Ct., 52 N.Y.S.2d 487, 
489. 

ADDITIONALES. In the law of contracts. Ad- 
ditional terms or propositions to be added to a 
former agreement. 

ADDITUR. The power of trial court to assess 
damages or increase amount of an inadequate 
award made by jury verdict, as condition of de- 
nial of motion for new trial, with consent of de- 
fendant whether or not plaintiff consents to such 
action. Dorsey et al. v. Barba et al., 226 P.2d 
677. 

ADDLED. Stupid, muddled, foolish. Windham v. 
State, 93 Tex.Cr.R. 477, 248 S.W. 51, 54. 

ADDLED PARLIAMENT. The parliament which 
met in 1614. It sat for but two months and none 
of its bills received the royal assent. Taylor, 
Jurispr. 359. 

ADDONE, Addonne. L. Fr. Given to. Kelham. 

ADDRESS. Place where mail or other communi- 
cations will reach person. Munson v. Bay State 
Dredging & Contracting Co., 314 Mass. 435, 50 
N.E.2d 633, 636. Generally a place of business or 
residence. 

Equity 

Part of a bill wherein is given the appropriate 
and technical description of the court in which 
the bill is filed. 

Legislation 

A formal request addressed to the executive by 
one or both branches of the legislative body, re- 
questing him to perform some act. 

It is provided as a means for the removal of judges 
deemed unworthy, though the causes of removal would not 
warrant impeachment. It is not provided for in the Con- 
stitution of the United States; and even in those states 
where the right exists it is exercised but seldom. 

Offense 

Not synonym of hazard, but an antonym, and, 
as respects gaming and devices, means skillful 


management, dexterity, or adroitness. In re Wig- 
ton, 151 Pa.Super. 337, 30 A. 2d 352, 355. 

ADDRESS TO THE CROWN. When the royal 
speech has been read in Parliament, an address in 
answer thereto is moved in both houses. Two 
members are selected in each house by the ad- 
ministration for moving and seconding the ad- 
dress. Since the commencement of the session 
1890-1891, it has been a single resolution express- 
ing their thanks to the sovereign for his gracious 
speech. 

ADDUCE. To present, bring forward, offer, in- 
troduce. Used particularly with reference to evi- 
dence. Tuttle v. Story County, 56 Iowa 316, 9 
N.W. 292. 

Broader in its signification than the word "of- 
fered." Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 
880; Brown v. Griffin, 40 Ill.App. 558. 

ADEEM. To take away, recall, or revoke. To 
satisfy a legacy by some gift or substituted dis- 
position, made by the testator, in advance. Tol- 
man v. Tolman, 85 Me. 317, 27 Atl. 184. Wood- 
burn Lodge No. 102, I. 0. 0. F., v. Wilson, 148 Or. 
150, 34 P.2d 61 1, 614. See Ademption. 

If the identical thing bequeathed is not in existence, 
or has been disposed of, the legacy is "adeemed" and the 
legatee's rights are gone. Lange v. Lange, 127 N.J.Eq. 
315, 12 A.2d 840, 843; Welch v. Welch, 147 Miss. 728, 1 13 
So. 197, 198. 

ADELANTADO. In Spanish law, the military 
and political governor of a frontier province. 
This office has long since been abolished. Also a 
president or president judge; a judge having 
jurisdiction over a kingdom, or over certain prov- 
inces only. So called from having authority over 
the judges of those places. Las Partidas, pt. 3, 
tit. 4, 1.1. 

ADELING, or ATHELING. Noble; excellent. 
A title of honor among the Anglo-Saxons, proper- 
ly belonging to the king's children. Spelman. 

ADEMPTIO. Lat. In the civil law, a revocation 
of a legacy; an ademption. Inst. 2, 21, pr. Where 
it was expressly transferred from one person to 
another, it was called translatio. Inst. 2, 21, 1; 
Dig. 34, 4. 

ADEMPTION. Extinction or withdrawal of lega- 
cy by testator's act equivalent to revocation or in- 
dicating intention to revoke. Tagnon's Adm'x v. 
Tagnon, 253 Ky. 374, 69 S.W.2d 714. 

Removal. Lewis v. Hill, 387 111. 542, 56 N.E.2d 
619, 621. Testator's giving to a legatee that 
which he has provided in his will, or his disposing 
of that part of his estate so bequeathed in such 
manner as to make it impossible to carry out the 
will. Hurley v. Schuler, 296 Ky. 118, 176 S.W. 2d 
275, 276. Revocation, recalling, or cancellation, 
of a legacy, according to the apparent inten- 
tion of the testator, implied by the law from acts 
done by him in his life, though such acts do not 
amount to an express revocation of it. Burnham 
v. Comfort, 108 N.Y. 535, 15 N.E. 710. 


60 



ADHERENCE 


The act by which the testator pays to his legatee, in his 
life-time, a general legacy which by his will he had pro- 
posed to give him at his death, 1 Rop.Leg. p. 365; and 
the act by which a specific legacy has become inoperative 
on account of the testator having parted with the subject. 
Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173, 174. 

See Advancement. 

ADEO. Lat. So, as. Adeo plene et integre, as 
fully and entirely. 10 Coke, 65. 

ADEQUATE. Sufficient; proportionate; equally 
efficient; equal to what is required; suitable to 
the case or occasion; satisfactory. Nagle v. City 
of Billings, 77 Mont. 205, 250 P. 445, 446. Equal to 
some given occasion or work. Nissen v. Miller, 44 
N.M. 487, 105 P.2d 324, 326. Commensurate; it 
does not mean average or graduation. Vander- 
made v. Appert, 125 N.J.Eq. 366, 5 A.2d 868, 871. 

ADEQUATE CARE. Such care as a man of ordi- 
nary prudence would himself take under similar 
circumstances to avoid accident; care proportion- 
ate to the risk to be incurred. Wallace v. Wilming- 
ton & N. R. Co., 8 Houst. (Del.) 529, 18 Atl. 818. 

ADEQUATE CAUSE, suffiicient cause for a par- 
ticular purpose. Pennsylvania 8s N. Y. Canal 8s R. 
Co. v. Mason, 109 Pa. 296, 58 Am. Rep. 722. 

In criminal law, adequate cause for the passion which 
reduces a homicide committed under its influence from the 
grade of murder to manslau g hter, means such cause as 
would commonly produce a degree of anger, rage, resent- 
ment, or terror, in a person of ordinary temper, sufficient 
to render the mind incapable of cool reflection. Insulting 
words or gestures, or an assault and battery so slight as to 
show no intention to inflict pain or injury, or an injury to 
property unaccompanied by violence are not adequate 
causes. Vollintine v. State, 77 Tex.Cr.R. 522, 179 S.W. 108; 
Berry v. State, 157 S.W.2d 650, 652, 143 Tex.Cr.R. 67. See 
Adequate Provocation. 

ADEQUATE COMPENSATION. Just value of 
property taken under power of eminent domain, 
payable in money. Buffalo, etc., R. Co. v. Ferris, 
26 Tex. 588. Market value of property when 
taken. Louisiana Highway Commission v. Guidry, 
176 La. 389, 146 So. 1, 5. It includes interest. Tex- 
arkana & Ft. S. Ry. Co. v. Brinkman, Tex. Civ. 
App., 288 S.W. 852, 853. It may include the cost or 
value of the property to the owner for the pur- 
poses for which he designed it. Elbert County v. 
Brown, 16 Ga.App. 834, 86 S.E. 651, 656. 

Such only as puts injured party in as good a 
condition as he would have been in if injury had 
not been inflicted. Town of Winchester v. Cox, 
129 Conn. 106, 26 A.2d 592, 597. 

ADEQUATE CONSIDERATION. One which is 
equal, or reasonably proportioned, to the value of 
that for which it is given. 1 Story, Eq. Jur. §§ 
244-247. One which is not so disproportionate as 
to shock our sense of that morality and fair deal- 
ing which should always characterize transac- 
tions between man and man. U. S. Smelting, 
Refining 8s Milling Co. v. Utah Power 8s Light Co., 
197 P. 902, 905, 58 Utah, 168. Fair and reasonable 
under circumstances. Boulenger v. Morison, 88 
Cal.App. 664, 264 P. 256, 259. Reasonably just and 
equitable. Laguna Land 8s Water Co. v. Green- 
wood, 92 Cal.App. 570, 268 P. 699, 700. 


ADEQUATE OR REASONABLE FACILITIES. 
Such railroad facilities as might be fairly de- 
manded, with regard to size of place, extent of 
demand for transportation, cost of furnishing ad- 
ditional accommodation asked for, and to all other 
facts which would have bearing upon question of 
convenience and cost. Kurn v. State, 175 Okl. 
379, 52 P.2d 841,843. 

ADEQUATE PREPARATION. Embraces full con- 
sultation with accused, interviews with witnesses, 
study of facts and law, and determination of char- 
acter of defense to be made and policy to be fol- 
lowed during trial. Nelson v. Commonwealth, 
295 Ky. 641, 175 S.W.2d 132, 133. 

ADEQUATE PROVOCATION. An adequate prov- 
ocation to cause a sudden transport of passion 
that may suspend the exercise of judgment and 
exclude premeditation and a previously formed 
design is one that is calculated to excite such 
anger as might obscure the reason or dominate 
the volition of an ordinary reasonable man. Com- 
monwealth v. Webb, 252 Pa. 187, 97 A. 189, 191. 

ADEQUATE REMEDY. One vested in the com- 
plainant, to which he may at all times resort at 
his own option, fully and freely, without let or 
hindrance. Wheeler v. Bedford, 7 A. 22, 54 Conn. 
244; State ex rel. Heimov v. Thomson, 131 Conn. 
8, 37 A. 2d 689, 692. Suitable, proportionate, or 
sufficient. Fischer v. Damm, 36 Ohio App. 515, 173 
N.E. 449, 451. 

A remedy which is plain and complete and as practical 
and efficient to the ends of justice and its prompt ad- 
ministration as the remedy in equity. Farmers & Traders 
Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62, 64. 

A remedy that affords complete relief with reference to 
the particular matter in controversy, and is appropriate to 
the circumstances of the case. State v. Huwe, 103 Ohio St. 
546, 134 N.E. 456, 459. A remedy to be adequate, preclud- 
ing resort to mandamus, must not only be one placing re- 
lator in statu quo, but must itself enforce in some way per- 
formance of the particular duty. State v. Erickson, 104 
Conn. 542, 133 A. 683, 686. Must reach end intended, ane, 
actually compel performance of duty in question. Bucha- 
nan v. Buchanan, 124 Va. 255, 6 S.E. 2d 612, 620. Must be 
plain, accurate, certain, speedy, specific, and appropriate 
to the particular circumstances, and must also be equally 
as convenient, beneficial, and effective as the remedy by 
mandamus. Simpson v. Williams Rural High School Dist., 
Tex. Civ. App., 153 S.W.2d 852, 856. 

ADESSE. In the civil law; to be present; the 
opposite of abesse. Calvin. 

ADEU. Without day, as when a matter is finally 
dismissed by the court. Alez adeu, go without 
day. Y. B. 5 Edw. II. 173. See Adieu. 

ADFERRUMINATIO. In the civil law, the weld- 
ing together of iron; a species of adjunctio, (q. 
v.). Called also ferru.mina.tio. Mackeld.Rom.Law, 
§ 276; Dig. 6, 1, 23, 5. 

ADHERENCE. In Scotch law, the name of a form 
of action by which the mutual obligation of mar- 
riage may be enforced by either party. Bell. It 
corresponds to the English action for the restitu- 
tion of conjugal rights. Wharton. 


61 



ADHERING 


ADHERING. Joining, leagued with, cleaving to; 
as, "adhering to the enemies of the United States." 

"Adhering" consists in giving to the United States the 
loyalty due from a citizen. United States v. Stephan, D.C. 
Mich., 50 F.Supp. 738, 741. 

Any intentional act furthering hostile designs of enemies 
of the United States, or an act which intentionally 
strengthens or tends to strengthen enemies of the United 
States, or which weakens or tends to weaken power of the 
United States to resist and attack such enemies, constitutes 
"adhering" to such enemies. United States v. Haupt, D.C. 
111., 47 F.Supp. 836, 839. 

Rebels, being citizens: are not "enemies," within the 
meaning of the constitution; hence a conviction for trea- 
son, in promoting a rebellion, cannot be sustained under 
that branch of the constitutional definition which speaks of 
"adhering to their enemies, giving them aid and comfort."' 
United States v. Greathouse, 2 Abb.U.S. 364, Fed.Cas.No. 
15,254. 

ADHESION. The entrance of another state into 
an existing treaty with respect only to a part of 
the principles laid down or the stipulations agreed 
to. Opp.Int.L. § 533. 

Properly speaking, by adhesion the third state 
becomes a party only to such parts as are spe- 
cifically agreed to, and by accession it accepts and 
is bound by the whole treaty. See Accession. 

ADHIBERE. In the civil law, to apply; to em- 
ploy; to exercise; to use. Adhibere diligentiam, 
to use care. Adhibere vim, to employ force. 

ADIATION. A term used in the laws of Holland 
for the application of property by an executor. 
Wharton. 

ADIEU. L. Fr. Without day. A common term 
in the Year Books, implying final dismissal from 
court. 

ADIPOCERE. A waxy substance (chemically 
margarate of ammonium or ammoniacal soap) 
formed by the decomposition of animal matter 
protected from the air but subjected to moisture; 
in medical jurisprudence, the substance into which 
a human cadaver is converted which has been 
buried for a long time in a saturated soil or has 
lain long in water. 

ADIRATUS. Lost; strayed; a price or value set 
upon things stolen or lost, as a recompense to the 
owner. Cowell. 

ADIT. In mining law, an entrance or approach; 
a horizontal excavation used as an entrance to a 
mine, or a vent by which ores and water are car- 
ried away; an excavation "in and along a lode," 
which in statutes of Colorado and other mining 
states is made the equivalent of a discovery shaft. 
Electro-Magnetic M. & D. Co. v. Van Auken, 9 
Colo. 204, 11 P. 80. 

ADITUS. An approach; a way; a public way. 
Co.Litt. 56a. 

ADJACENT. Lying near or close to; sometimes, 
contiguous; neighboring. Ex parte Jeffcoat, 108 
Fla. 207, 146 So. 827. Adjacent implies that the 
two objects are not widely separated, though they 
may not actually touch, Harrison v. Guilford 
County, 218 N.C. 718, 12 S.E.2d 269, while adjoin- 


ing imports that they are so joined or united to 
each other that no third object intervenes. Wolfe 
v. Hurley, D.C.La., 46 F.2d 515, 521. 

A word of flexible meaning, depending upon context and 
subject matter. U. S. v. Denver & R. G. Ry. Co., D.C. 
Colo., 31 F. 886; Johnston v. Davenport Brick & Tile Co., 
D.C. Iowa, 237 F. 668, 669. 

Suburbs of city not within limits of another municipali- 
ty though a long strip of land 1 0 feet wide connected the 
property with city limits. Lefler v. City of Dallas, Tex. 
Civ.App., 177 S.W.2d 231, 235. 

ADJECTIVE LAW. The aggregate of rules of 
procedure or practice. As opposed to that body 
of law which the courts are established to ad- 
minister, (called "substantive law,") it means the 
rules according to which the substantive law is 
administered. That part of the law which pro- 
vides a method for enforcing or maintaining 
rights, or obtaining redress for their invasion. 
Maurizi v. Western Coal 8s Mining Co., 321 Mo. 
378, 11 S.W.2d 268, 272. Holl.Jur. 61,238. 

ADJOINING. The word in its etymological sense, 
means touching or contiguous, as distinguished 
from lying near to or adjacent. Broun v. Texas 
8s N. 0. R. Co., Tex. Civ.App., 295 S.W. 670, 674; 
Plainfield-Union Water Co. v. Inhabitants of City 
of Plainfield, 84 N.J.Law, 634, 87 A. 448, 450. To 
be in contact with; to abut upon. State ex rel. 
Boynton v. Bunton, 141 Kan. 103, 40 P.2d 326, 328. 
And the same meaning has been given to it when 
used in statutes. City of New York v. Alheidt, 
151 N.Y.S. 463, 464, 88 Misc. 524. See Adjacent. 

ADJOURN. To put off; defer; postpone. To 
postpone action of a convened court or body until 
another time specified, or indefinitely, the latter 
being usually called to adjourn sine die. Bispham 
v. Tucker, 2 N.J.L. 253; Reynolds v. Cropsey, 241 
N.Y. 389, 150 N.E. 303. To suspend or recess dur- 
ing a meeting which continues in session. Byrd 
v. Byrd, 193 Miss. 249, 8 So.2d 510, 512. 

Suspending business for a time, delaying. Prob- 
ably, without some limitation, it would, when used 
with reference to a sale on foreclosure, or any 
judicial proceeding, properly include the fixing of 
the time to which the postponement was made. 
Waldrop v. Kansas City Southern Ry. Co., 131 
Ark. 453, 199 S.W. 369, 371, L.R.A.1918B, 1081. 

ADJOURNAL. A term applied in Scotch law and 
practice to the records of the criminal courts. 
The original records of criminal trials were called 
"bukis of adiornale," or "books of adjournal," 
few of which are now extant. An "act of ad- 
journal" is an order of the court of justiciary 
entered on its minutes. 

ADJOURNAMENTUM EST AD DIEM DICERE 
SEU DIEM DARE. An adjournment is to appoint 
a day or give a day. 4 Inst. 27. Hence the formu- 
la "eat sine die. " 

ADJOURNATUR. L. Lat. It is adjourned. A 
word with which the old reports very frequently 
conclude a case. 1 Ld.Raym. 602; 1 Show. 7; 1 
Leon. 88. 


62 



ADJUDICATION 


A continuation of the same meeting, and at such 
adjourned meeting the governing body can do any 
act which might have been done if no adjourn- 
ment had taken place, and limitations imposed on 
governing body as regards action at original meet- 
ing obtain at adjourned meeting. Vogel v. Parker, 
118 N.J.L. 521, 193 A. 817, 818. One ordered by 
board at regular meeting, and which is to con- 
vene after termination of such regular meeting 
and prior to next regular meeting. Byrd v. Byrd, 
193 Miss. 249, 8 So.2d510, 513. 

ADJOURNED SUMMONS. A summons taken out 
in the chambers of a judge, and afterwards taken 
into court to be argued by counsel. 

ADJOURNED TERM. In practice, a continuance, 
by adjournment, of a regular term. Harris v. 
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan. 
App. 23, 41 P. 991. Distinguished from an "addi- 
tional term," which is a distinct term. Harris v. 
Gest, 4 Ohio St. 473; Kingsley v. Bagby, 2 Kan. 
App. 23, 41 P. 991. A continuation of a previous 
or regular term; the same term prolonged, where- 
in power of court over business which has been 
done, and the entries made at the regular term, 
continues. Van Dyke v. State, 22 Ala. 57; Carter 
v. State, 14 Ga.App. 242, 80 S.E. 533, 534. 

ADJOURNMENT. A putting off or postponing of 
business or of a session until another time or 
place; the act of a court, legislative body, public 
meeting, or officer, by which the session or assem- 
bly is dissolved, either temporarily or finally, and 
the business in hand dismissed from considera- 
tion, either definitely or for an interval. If the 
adjournment is final, it is said to be sine die. See 
Johnson City v. Tennessee Eastern Electric Co., 
133 Tenn. 632, 182 S.W. 587, 589. 

In the civil law a calling into court; a sum- 
moning at an appointed time. Due Cange. 

ADJOURNMENT DAY. A further day appointed 
by the judges at the regular sittings at nisi prius 
to try issue of fact not then ready for trial. 

ADJOURNMENT DAY IN ERROR. In English 
practice, a day appointed some days before the 
end of the term at which matters left undone on 
the affirmance day are finished. 2 Tidd, Pr. 1 176. 

ADJOURNMENT IN EYRE. The appointment of 
a day when the justices in eyre mean to sit again. 
Cowell; Spelman. 

ADJOURNMENT SINE DIE. An adjournment 
without setting a time for another meeting or ses- 
sion. See Sine Die. 

ADJUDGE. To pass on judicially, to decide, set- 
tle, or decree, or to sentence or condemn. People 
v. Rave, 364 111. 72, 3 N.E.2d 972, 975. 

Judgment of a court of competent jurisdiction; equiva- 
lent of convicted and sentenced. In re Tarlo's Estate, 315 
Pa. 321, 172 A. 139, 140. Implies a judicial determination 
of a fact, and the entry of a judgment. Department of 
Banking v. Hedges, 136 Neb. 382, 286 N.W. 277, 283. Does 
not mean the same as deemed, contra, under statute, 
State v. District Court, 64 Mont. 181, 208 P. 952, 955. 
Blaufus v. People, 69 N.Y. 107, 25 Am. Rep. 148. Predicated 


only of an act of the court. Searight v. Com., 13 S. & R. 
Pa. 301. Compare Drinkhouse v. Van Ness, 202 Cal. 359, 
260 P. 869, 874 ; People ex rel. Strohsahl v. Strohsahl, 222 
N.Y.S. 319, 324, 221 App. Div. 86. 

ADJUDICATAIRE. In Canadian law, a purchaser 
at a sheriffs sale. See 1 Low. Can. 241; 10 Low. 
Can. 325. 

ADJUDICATE. To settle in the exercise of ju- 
dicial authority. To determine finally. Synony- 
mous with adjudge in its strictest sense. United 
States v. Irwin, 8 S.Ct. 1033, 127 U.S. 125, 32 L.Ed. 
99; Street v. Benner, 20 Fla. 700. 

ADJUDICATEE. In French and civil law, the 
purchaser at a judicial sale. Brent v. New Or- 
leans, 6 So. 793, 41 La.Ann. 1098. 

ADJUDICATIO. In the civil law, an adjudication. 
The judgment of the court that the subject-matter 
is the property of one of the litigants; confirma- 
tion of title by judgment. Mackeld.Rom.Law, § 
204. 

ADJUDICATION. The giving or pronouncing a 
judgment or decree in a cause; also the judgment 
given. People ex rel. Argus Co. v. Hugo, 168 N.Y. 
S. 25, 27, 101 Misc. 481. Or the entry of a decree 
by a court in respect to the parties in a case. 
Samuel Goldwyn, Inc., v. United Artists Corpora- 
tion, C.C.A.Del., 113 F.2d 703, 706. 

It implies a hearing by a court, after notice, of legal 
evidence on the factual issue involved. Genzer v. Fillip, 
Tex.Civ.App., 134 S.W. 2d 730, 732. The equivalent of a 
"determination." Campbell v. Wyoming Development Co., 
55 Wyo. 347, 100 P.2d 124, 132. And contemplates that the 
claims of all the parties thereto have been considered and 
set at rest. Miller v. Scobie, 152 Fla. 328, 11 So. 2d 892, 894. 
The term is principally used in bankruptcy proceedings, 
the adjudication being the order which declares the debtor 
to be a bankrupt. First Nat. Bank v. Pothuisje, 217 Ind. 1, 
25 N.E.2d 436, 438, 130 A.L.R. 1238. 

French Law 

A sale made at public auction and upon com- 
petition. Adjudications are voluntary, judicial, or 
administrative. Duverger. 

Scotch Law 

A species of diligence, or process for trans- 
ferring the estate of a debtor to a creditor, car- 
ried on as an ordinary action before the court of 
session. A species of judicial sale, redeemable by 
the debtor. A decreet of the lords of session, ad- 
judging and appropriating a person's lands, here- 
ditaments, or any heritable right to belong to his 
creditor, who is called the "adjudger," for payment 
or performance. Bell; Ersk.Inst. c. 2, tit. 12, §§ 
39-55; Forb.Inst. pt. 3, b. 1, c. 2, tit. 6. 

Adjudication contra hreditatem jacentem. When 
a debtor's heir apparent renounces the succession, 
any creditor may obtain a. decree cognitionis 
causel, the purpose of which is that the amount of 
the debt may be ascertained so that the real estate 
may be adjudged. 

Adjudication in bankruptcy. See Bankruptcy. 


63 



ADJUDICATION 


Adjudication in implement. An action by a gran- 
tee against his grantor to compel him to com- 
plete the title. 

ADJUNCT. Something added to another. New 
York Trust Co. v. Carpenter, C.C.A.Ohio, 250 F. 
668, 672. 

An additional judge sometimes appointed in the 
Court of. Delegates, q. v. 

ADJUNCTIO. In the civil law, adjunction; a 
species of accessio, whereby two things belong- 
ing to different proprietors are brought into firm 
connection with each other; such as interweaving, 
(intertextu.ro.); welding together, (adferrumina- 
tio); soldering together, (applumbatura); paint- 
ing, (pictura ); writing, (scriptu.ro.); building, 
(inadificatio); sewing, (ratio) ; and planting, 
(picm.ta.tio). Inst. 2, 1, 26-34; Dig. 6, 1, 23; 
Mackeld.Rom.Law, § 276. See Accessio. 

ADJUNCTION. In civil law, the attachment or 
union permanently of a thing belonging to one 
person to that belonging to another. This union 
may be caused by inclusion, as if one man's dia- 
mond be set in another's ring, or by soldering, 
sewing, construction, writing, or painting. 

The common law implicitly adopts the civil law 
doctrines. See 2 Bla.Com. 404. See Accession. 

One associated with another in a subordinate 
or an auxiliary manner; an associate. 

ADJUNCTS. Additional judges sometimes ap- 
pointed in the Court of Delegates, q. v. See Shel- 
ford, Lun. 310; 1 Hagg.Eccl.Rep. 384; 2 Id. 84; 
3 id. 471. 

ADJUNCTUM ACCESSORIUM. An accessory or 
appurtenance. 

ADJURATION. A swearing or binding upon oath. 

ADJUST. To settle or arrange; to free from 
differences or discrepancies; to bring to satis- 
factory state so that parties are agreed, as to ad- 
just amount of loss by fire. Western Loggers' Ma- 
chinery Co. v. National Union Fire Ins. Co., 136 
Or. 549, 299 P. 311, 312. Controversy to property 
or estate, In re Sidman's Estate, 278 N.Y.S. 43, 
154 Misc. 675. To bring to proper relations; to 
settle; Jeff Davis County v. Davis, Tex.Civ.App., 
192 S.W. 291, 295. To determine and apportion an 
amount due. Flaherty v. Insurance Co., 46 N.Y.S. 
934, 20 App.Div. 275. Accounts are adjusted when 
they are settled and a balance struck. Townes v. 
Birchett, 12 Leigh Va. 173, 201. It is sometimes 
used in the sense of pay. See Lynch v. Nugent, 
80 Iowa, 422, 46 N.W. 61. When used in reference 
to a liquidated claim, Combination Oil & Gas Co. 
v. Brady, Tex.Civ.App., 96 S.W.2d 415, 416. 

ADJUSTED COST BASIS. For income tax pur- 
poses, original cost plus additions to capital less 
depreciation results in the "adjusted cost basis." 
Herder v. Helvering, 106 F.2d 153, 162, 70 App.D. 
C. 287. 

ADJUSTER. One appointed to adjust a matter, to 
ascertain or arrange or settle. Commercial Credit 


Co. v. Macht, 89 Ind.App. 59, 165 N.E. 766. One 
who makes any adjustment or settlement. Popa 
v. Northern Ins. Co., 192 Mich. 237, 158 N.W. 945, 
946, or who determines the amount of a claim, as 
a claim against an insurance company. Sam- 
chuck v. Insurance Co. of North America, 99 Or. 
565, 194 P. 1095. He is a special agent for the 
person or company for whom he acts. Bond v. 
National Fire Ins. Co., 77 W.Va. 736, 88 S.E. 389, 
394; Howe v. State Bar of California, 212 Cal. 
222, 298 P. 25, 27. Compare Manheim v. Standard 
Fire Ins. Co. of Hartford, Conn., 84 Wash. 16, 145 
P. 992. 

ADJUSTMENT. An arrangement; a settlement. 
Henry D. Davis Lumber Co. v. Pacific Lumber 
Agency, 220 P. 804, 805, 127 Wash. 198. 

In the law of insurance, the adjustment of a loss is the 
ascertainment of its amount and the ratable distribution 
of it among those liable to pay it; the settling and as- 
certaining the amount of the indemnity which the assured, 
after all allowances and deductions made, is entitled to re- 
ceive under the policy, and fixing the proportion which 
each underwriter is liable to pay. Marsh. Ins. 4th Ed. 499; 
2 Phil. Ins. §§ 1814, 1815; New York v. Insurance Co., 39 
N.Y. 45, 100 Am. Dec. 400; Whipple v. Insurance Co., 11 R. 
I. 139. 

ADJUTANT GENERAL. The term "civil adju- 
tant general" is used as one of convenience mere- 
ly to designate state adjutant general who has 
not been officially recognized by War Department. 
People v. Newlon, 77 Colo. 516, 238 P. 44, 47. 

ADJUVARI QUIPPE NOS, NON DECIPI, BENE- 
FICIO OPORTET. We ought to be favored, not 
injured by that which is intended for our benefit. 
(The species of bailment called "loan" must be 
to the advantage of the borrower, not to his detri- 
ment.) Story, Bailm. § 275. See 8 El. & Bl. 1051. 

ADLAMWR. In Welsh law, a proprietor who, for 
some cause, entered the service of another proprie- 
tor, and left him after the expiration of a year 
and a day. He was liable to the payment of 30 
pence to his patron. Wharton. 

ADLEGIARE. To purge one's self of a crime by 
oath. 

ADMANUENSIS. A person who swore by laying 
his hands on the book. 

ADMEASUREMENT. Ascertainment by measure; 
measuring out; assignment or apportionment by 
measure, that is, by fixed quantity or value, by 
certain limits, or in definite and fixed proportions. 

ADMEASUREMENT OF DOWER. In practice, a 
remedy which lay for the heir on reaching his 
majority to rectify an assignment of dower made 
during his minority, by which the doweress had 
received more than she was legally entitled to. 2 
Bl.Comm. 136; Gilb. Uses, 379. 

The remedy is of rare occurrence. Jones v. Brewer, 1 
Pick. (Mass.) 314; McCormick v. Taylor, 2 Ind. 336. In 
some of the states the statutory proceeding enabling a 
widow to compel the assignment of dower is called "ad- 
measurement of dower." 

ADMEASUREMENT OF PASTURE. In English 
law, a writ which lay between those that have 



ADMINISTRATION 


common of pasture appendant, or by vicinage, in 
cases where any one or more of them surcharges 
the common with more cattle than they ought. 
Bract, fol. 229a; 1 Crabb, Real Prop. p..318, § 
358. The remedy is now abolished in England; 3 
Sharsw.Bla.Com. 239, n.; and in the United States; 

3 Kent 419. 

ADMEASUREMENT, WRIT OF. It lay against 
persons who usurped more than their share, in 
the two following cases: Admeasurement of dow- 
er, and admeasurement of pasture. Termes de 
la Ley. 

ADMENSURATIO. In old English law, admeas- 
urement. Reg.Orig. 156, 157. 

ADMEZATORES. In old Italian law, persons 
chosen by the consent of contending parties, to 
decide questions between them. Literally, media- 
tors. Spelman. 

ADMINICLE. Used as an English word in the 
statute of 1 Edw. IV, c. 1, in the sense of aid, or 
support. 

In civil law, imperfect proof. Merl. Repert. 
See Adminiculum. 

In Scotch law, an aid or support to something 
else. A collateral deed or writing, referring to 
another which has been lost, and which it is in 
general necessary to produce -before the tenor of 
the lost deed can be proved by parol evidence. 
Ersk.Inst. b. 4, tit. 1, § 55. 

ADMINICULAR. Auxiliary or subordinate to. 
"The murder would be adminicular to the rob- 
bery," (i. e., committed to accomplish it.) The 
Marianna Flora, 3 Mason, 121, Fed. Cas. No. 9080. 

ADMINICULAR EVIDENCE. Auxiliary or sup- 
plementary evidence; such as is presented for the 
purpose of explaining and completing other evi- 
dence. (Chiefly used in ecclesiastical law) 

ADMINICULATE. To give adminicular evidence. 

ADMINICULATOR. An officer in the Romish 
church, who administered to the wants of widows, 
orphans, and afflicted persons. Spelman. 

ADMINICULUM. Lat. An adminicle; a prop or 
support; an accessory thing. An aid or support 
to something else, whether a right or the evidence 
of one. It is principally used to designate evi- 
dence adduced in aid or support of other evidence, 
which without it is imperfect. Brown. 

ADMINISTER. To manage or conduct. Glocksen 
v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637. To 
discharge the duties of an office; to take charge 
of business; to manage affairs; to serve in the 
conduct of affairs, in the application of things to 
their uses; to settle and distribute the estate of a 
decedent. Hunter v. City of Louisville, 208 Ky. 
562, 271 S.W. 690, 691. 

Also, to give, as an oath; to direct or cause to 
be taken. Gilchrist v. Comfort, 34 N.Y. 239; Brin- 
son v. State, 89 Ala. 105, 8 So. 527; State v. 
Van Wormer, 103 Kan. 309, 173 P. 1076, 1081. 


To apply, as medicine or a remedy; to give, as 
a dose or something beneficial or suitable. Bar- 
field v. State, 71 Okl.Cr. 195, 110 P.2d 316, 317. To 
cause or procure a person to take some drug or 
other substance into his or her system; to direct 
and cause a medicine, poison, or drug to be taken 
into the system. State v. Jones, 4 Pennewill 
(Del.) 109, 53 Atl. 861; McCaughey v. State, 156 
Ind. 41, 59 N.E. 169. 

Neither fraud nor deception is a necessary in- 
gredient in the act of administering poison. To 
force poison into the stomach of another; to com- 
pel another by threats of violence to swallow 
poison; to furnish poison to another for the pur- 
pose and with the intention that the person to 
whom it is delivered shall commit suicide there- 
with, and which poison is accordingly taken by 
the suicide for that purpose; or to be present at 
the taking of poison by a suicide, participating in 
the taking thereof, by assistance, persuasion, or 
otherwise, — each and all of these are forms and 
modes of "administering" poison. Blackburn v. 
State, 23 Ohio St. 146. 

ADMINISTRATION. Managing or conduct of an 
office or employment; the performance of the ex- 
ecutive duties of an institution, business, or the 
like. Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d 
510. 

In public law, the administration of govern- 
ment means the practical management and direc- 
tion of the executive department, or of the public 
machinery or functions, or of the operations of 
the various organs of the sovereign; direction or 
oversight of any office, service, or employment. 
Greene v. Wheeler, C.C.A.Wis., 29 F.2d 468, 469. 
The term "administration" is also conventionally 
applied to the whole class of public functionaries, 
or those in charge of the management of the ex- 
ecutive department. House v. Creveling, 147 Tenn. 
589, 250 S.W. 357, 358. 

ADMINISTRATION EXPENSE. "Administrative 
expenses" imply disbursements incidental to the 
management of the estate for which credit would 
be allowed on a voucher. In re Hooker's Estate, 
18 N.Y.S.2d 107, 112, 173 Misc. 515. Those deducti- 
ble in computing estate tax are merely charges 
which are proper deductions and in ordinary 
course of administration will ultimately be al- 
lowed. Bourne v. U. S., Ct.Cl., 2 F.Supp. 228, 231. 

ADMINISTRATION OF ESTATES. Supervision 
by an executor or administrator. Peterson v. 
Demmer, D.C.Tex., 34 F.Supp. 697, 700. Manage- 
ment of estate by independent executrix. Palfrey 
v. Harborth, Tex.Civ.App., 158 S.W.2d 326, 327. 
Normally involves the collection, management, 
and distribution of estate, including legal proceed- 
ings necessary to satisfy claims of creditors, next 
of kin, legatees, or whatever other parties may 
have any claim to property of a deceased person. 
Hawley v. Hawley, 114 F.2d 745, 748, 72 App.D.C. 
376. 

The management and settlement of the estate of an in- 
testate, or of a testator who has no executor, performed 
under the supervision of a court, by a person duly qualified 


Black's Law Dictionary Revised 4th Ed. -5 


65 



ADMINISTRATION 


and legajly appointed, and usually involving (1) the col- 
lection of the decedent's assets; (2) payment of debts and 
claims against him and expenses; (3) distributing the re- 
mainder of the estate among those entitled thereto. 

The term is applied broadly to denote the management 
of an estate by an executor, and also the management of 
estates of minors, lunatics, etc., in those cases where trus- 
tees have been appointed by authority of law to take 
charge of such estates in place of the legal owners. Bouvi- 
er; Crow v. Hubard, 62 Md. 565. 

Administration is principally of the following kinds, viz. 

Ad colligendum bona defuncti. To collect the goods of 
the deceased. Special letters of administration granted to 
one or more persons, authorizing them to collect and pre- 
serve the goods of the deceased, are so called. 2 Bl.Comm. 
5Q5; 2 Steph.Comm. 241. These are otherwise termed 
"letters ad colligendum, " and the party to whom they are 
granted, a "collector." 

An administrator ad colligendum is the mere agent or 
officer of the court to collect and preserve the goods of 
the deceased until some one is clothed with authority to 
administer them, and cannot complain that another is ap- 
pointed administrator in chief. Flora v. Mennice, 12 Ala. 
836. 

Ancillary administration is auxiliary and subordinate to 
the administration at the place of the decedent's domicile; 
it may be taken out in any foreign state or country where 
assets are locally situated, and is merely for the purpose 
of collecting such assets and paying debts there. 

Cum testamento annexo. Administration with the will 
annexed. Administration granted in cases where a testator 
makes a will, without naming any executors ; or where 
the executors who are named in the will are incompetent 
to act, or refuse to act; or in case of the death of the 
executors, or the survivor of them. 2 Bl.Comm. 503, 504. 

De bonis non. Administration of the goods not ad- 
ministered. Administration granted for the purpose of ad- 
ministering such of the goods of a deceased person as were 
not administered by the former executor or administrator. 
Tucker v. Horner, 10 Phila.Pa. 122. 

De bonis non cum testamento annexo. That which is 
granted when an executor dies leaving a part of the es- 
tate unadministered. Clemens v. Walker, 40 Ala. 189. 

Durante absentia. That which is granted during the ab- 
sence of the executor and until he has proved the will. 

Durante minori cetate. Where an infant is made execu- 
tor; in which case administration with will annexed is 
granted to another, during the minority of such executor, 
and until he shall attain his lawful age to act. See Godo. 
102 . 

Foreign administration. That which is exercised by vir- 
tue of authority properly conferred by a foreign power. 

Pendente lite. Administration during the suit. Ad- 
ministration granted during the pendency of a suit touch- 
ing the validity of a will. 18 N.J.Law, 15, 20. 

Public administration is such as is conducted (in some 
jurisdictions) by an officer called the public administrator, 
who is appointed to administer in cases where the intes- 
tate has left no person entitled to apply for letters. 

General administration. The grant of authority to ad- 
minister upon the entire estate of a decedent, without re- 
striction or limitation, whether under the intestate laws or 
with the will annexed. Clemens v. Walker, 40 Ala. 198. 

Special administration. Authority to administer upon 
some few particular effects of a decedent, as opposed to 
authority to administer his whole estate. In re Senate Bill, 
12 Colo. 193, 21 P. 482. 

Letters of Administration. The instrument by which an 
administrator or administratrix is authorized by the pro- 
bate court, surrogate, or other proper officer, to have the 
charge and administration of the goods and chattels of an 
intestate. See Mutual Ben. L. Ins. Co. v. Tisdale, 91 U.S. 
243, 23 L.Ed. 314. 

ADMINISTRATION SUIT. In English practice, a 
suit brought in chancery, by any one interested, 
for administration of a decedent's estate, when 
there is doubt as to its solvency. Stimson. 


ADMINISTRATIVE. Connotes of or pertains to 
administration, especially management, as by 
managing or conducting, directing , or superintend- 
ing, the execution, application, or conduct of per- 
sons or things. Fluet v. McCabe, Mass., 299 
Mass. 173, 12 N.E.2d 89, 93. Particularly, having 
the character of executive or ministerial action. 
Mauritz v. Schwind, Tex.Civ.App., 101 S.W.2d 
1085, 1090. In this sense, administrative func- 
tions or acts are distinguished from such as are 
judicial. People v. Austin, 46 N.Y.Supp. 526, 20 
App.Div. 1. Synonymous with "executive." Sheely 
v. People, 54 Colo. 136, 129 P. 201, 202; Saint v. 
Allen, 126 So. 548, 555, 169 La. 1046. An ad- 
ministrative act concerns daily affairs as distin- 
guished from permanent matters. People v. 
Graham, 70 Colo. 509, 203 P. 277, 278. 

ADMINISTRATIVE ACTS. Acts of an officer 
which are to be deemed as acts of administration, 
and are commonly called "administrative acts" 
and classed among those governmental powers 
properly assigned to the executive department, 
'are those acts which are necessary to be done to 
carry out legislative policies and purposes already 
declared by the legislative body or such as are 
devolved upon it by the organic law of its ex- 
istence. Ex parte McDonough, 27 Cal.App.2d 155, 
80 P.2d 485, 487. 

ADMINISTRATIVE AGENCY. An agency of the 
sovereign power charged with administering par- 
ticular legislation. Examples are compensation 
and industrial commissions, Joseph H. Weider- 
hoff, Inc., v. Neal, D.C.Mo., 6 F.Supp. 798, 799; 
Federal Trade Commission, Hastings Mfg. Co. 
v. Federal Trade Commission, 153 F.2d 253, cer- 
tiorari denied 66 S.Ct. 1344, 328 U.S. 853, 90 L.Ed. 
1626; tax commissions, First State Bank of Moun- 
tainair v. State Tax Commission, 59 P.2d 667, 40 
N.M. 319; public service commissions, New York 
Cent. R. Co. v. Public Service Commission, 7 N.E. 
2d 957, 212 Ind. 329; and the like. 

ADMINISTRATIVE BOARD. The term is very 
broad and includes bodies exercising varied func- 
tions, some of which involve orders made or 
other acts done ex parte or without full hearing 
as to the operative facts, while others are done 
only after such a notice and hearing, and the 
functions of the former kind are plainly "admin- 
istrative" and those of the latter are "quasi ju- 
dicial". Beaverdale Memorial Park v. Danaher, 
127 Conn. 175, 15A.2dl7, 21. 

"Administrative boards" differ from "courts" in that 
boards frequently represent public interests entrusted to 
boards, whereas courts are concerned with litigating 
rights of parties with adverse interests. Rommell v. 
Walsh, 15 A.2d 6, 9, 127 Conn. 16. 

ADMINISTRATIVE DISCRETION. "Administra- 
tive discretion" means that the doing of acts or 
things required to be done may rest, in part at 
least, upon considerations not entirely susceptible 
of proof or disproof and at times which consider- 
ing the circumstances and subject-matter cannot 
be supplied by the Legislature, and a statute con- 
fers such discretion when it refers a commission 
or officer to beliefs, expectations, or tendencies 


66 



ADMIRAL 


instead of facts for the exercise of the powers 
conferred. Culver v. Smith, Tex.Civ.App., 74 S. 
W.2d 754, 757. 

ADMINISTRATIVE LAW. That branch of pub- 
lic law which deals with the various organs of 
the sovereign power considered as in motion, and 
prescribes in detail the manner of their activity, 
being concerned with such topics as the collection 
of the revenue, the regulation of the military and 
naval forces, citizenship and naturalization, sani- 
tary measures, poor laws, coinage, police, the 
public safety and morals, etc. See Holl.Jur. 305- 
307. 

ADMINISTRATIVE OFFICER. Politically and as 
used in constitutional law, an officer of the execu- 
tive department of government, and generally one 
of inferior rank; legally, a ministerial or execu- 
tive officer, as distinguished from a judicial offi- 
cer. People v. Salsbury, 134 Mich. 537, 96 N.W. 
936. 

One who performs mere ministerial or administrative 
functions. In re Gold, C.C.A.N.J., 93 F.2d 676, 680. Offi- 
cers that are neither judicial nor legislative; executive 
officers, Spivey v. State, 104 P.2d 263, 277, 69 Okl.Cr. 397. 
Such as: The clerk of circuit court, State ex rel. and to 
Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d 
109, 112. Receivers in bank liquidation proceedings, People 
ex rel. Nelson v. Crawford State Sa y . Bank, 310 Ill.App. 
533, 34 N.E.2d 872. State highway commissioner, Strobel 
Steel Const. Co. v. Sterner, 125 N.J.L. 622, 18 A.2d 28, 29. 

ADMINISTRATIVE REMEDY. One not judicial, 
but provided by commission or board created by 
legislative power. Kansas City Southern R. Co. 
v. Ogden Levee Dist., C.C.A.Ark., 15 F.2d 637, 
642. Against wrongful assessment of benefits by 
a levee district. Board of Directors of St. Francis 
Levee Dist. v. St. Louis-San Francisco Ry. Co., 
C.C.A.Ark., 74 F.2d 183, 188. 

ADMINISTRATOR, in the most usual sense of 
the word, is a person to whom letters of admin- 
istration, that is, an authority to administer the 
estate of a deceased person, have been granted 
by the proper court. A representative of limited 
authority, whose duties are to collect assets of 
estate, pay its debts, and distribute residue to 
those entitled. Smith v. White's Estate, 108 Vt. 
473, 188 A. 901, 904. A technical trustee. In re 
Watkins' Estate, Vt., 41 A.2d 180, 188. 

He resembles an executor, but, being appointed 
by the court, and not by the deceased, he has to 
give security for the due administration of the 
estate, by entering into a bond with sureties, call- 
ed the administration bond. Smith v. Gentry, 16 
Ga. 31; Collamore v. Wilder, 19 Kan. 78; Gorm- 
ley v. Watson, 177 Ga. 763, 171 S.E. 280, 281. 

By the law of Scotland the father is what is called 
the "administrator-in-law" for his children. As such, he 
is ipso jure their tutor while they are pupils, and their 
curator during their minority. The father's power ex- 
tends over whatever estate may descend to his children, 
unless where that estate has been placed by the donor or 
grantor under the charge of special trustees or managers. 
This power in the father ceases by the child's discontinu- 
ing to reside with him, unless he continues to live at the 
father's expense; and with re g ard to dnu-hte-s, it ceases 
on their marriage, the husband being the legal curator of 
his wife. Bell. 


Civil Law 

A manager or conductor of affairs, especially 
the affairs of another, in his name or behalf. A 
manager of public affairs in behalf of others. 
Calvin. A public officer, ruler, or governor. Nov. 
95, gl.; Cod. 12, 8. 

Domestic 

One appointed at the place of the domicile of 
the decedent; distinguished from a foreign or an 
ancillary administrator. 

Foreign 

One appointed or qualified under the laws of a 
foreign state or country, where the decedent was 
domiciled. 

Public 

An official provided for by statute in some states 
to administer upon the property of intestates in 
certain cases. See Rocca v. Thompson, 32 S.Ct. 
207, 223 U.S. 317, 56 L.Ed. 453. 

ADMINISTRATOR CUM TESTAMENTO AN- 
NEXO. See Cum Testamento Annexo. 

ADMINISTRATOR DE BONIS NON. "Adminis- 
trators de bonis non administratis" are, as the 
term signifies, persons appointed by the court of 
probate to administer on the effects of a decedent 
which have not been included in a former admin- 
istration. Paul v. Butler, 129 Kan. 244, 282 P. 
732, 734. 

Where will is set aside as void, administrator subse- 
quently appointed is not "administrator de bonis non," 
but administrator of entire estate with power to attack 
nominated executor's report. Douglas' Adm'r v. Douglas' 
Ex'r, 48 S.W.2d 11, 14, 243 Ky. 321. 

ADMINISTRATOR WITH WILL ANNEXED. One 
appointed administrator of deceased's estate after 
executors named in will refused to act. In re 
Kenney's Estate, 41 N.M. 576, 72 P.2d 27, 29, 113 
A.L.R. 403. 

ADMINISTRATRIX. A woman who administers, 
or to whom letters of administration have been 
granted. 

ADMINISTRAVIT. Lat. He has administered. 
Used in the phrase plene administravit, which is 
the name of a plea by an executor or administra- 
tor to the 'effect that he has "fully administered" 
(lawfully disposed of) all the assets of the estate 
that have come to his hands. 

ADMIRAL. Title of high naval officers; they 
are of various grades, — rear admiral, vice-admiral, 
admiral, admiral of the fleet, the last named 
being the highest. But by Act of Jan. 24, 1873 (17 
Stat. 418), certain grades ceased to exist when 
the offices became vacant. 

In old English law, a high officer or magis- 
trate that had the government of the king's navy, 
and the hearing of all causes belonging to the sea. 
Cowell. 

In European law, an officer who presided over 
the admiralitas, or collegium ammiralitatis. Locc. 
de Jur.Mar. lib. 2, c. 2, § 1. 


67 



ADMIRALITAS 


ADMIRALITAS. L. Lat. Admiralty; the admir- 
alty, or court of admiralty. 

In European law, an association of private 
armed vessels for mutual protection and defense 
against pirates and enemies 

ADMIRALTY. A court which has a very exten- 
sive jurisdiction of maritime causes, civil and 
criminal, controversies arising out of acts done 
upon or relating to the sea, and questions of 
prize. 

It is properly the successor of the consular courts, which 
were emphatically the courts of merchants and sea-going 
persons, established in the principal maritime cities on the 
revival of commerce after the fall of the Western Empire, 
to supply the want of tribunals that might decide causes 
arising out of maritime commerce. 

Also, the system of jurisprudence relating to 
and growing out of the jurisdiction and practice 
of the admiralty courts. 

American Law 

A tribunal exercising jurisdiction over all mari- 
time contracts, torts, injuries, or offenses. Pan- 
ama R. Co. v. Johnson, 44 S.Ct. 391, 264 U.S. 375, 
68 L.Ed. 748. 

"Admiralty" does not extend to all navigable waters, but 
is limited to the ocean, navigable rivers running into the 
ocean, and the Great Lakes and their connections. The 
Frank G. Fobert, D.C.N.Y., 32 F.Supp. 214, 216. 

The jurisdiction of the admiral, and the administration 
of the admiralty law proper — the local maritime law — as 
it became a judicial function, has passed into the hands of 
the courts. Renew v. U. S., D.C.Ga., 1 F.Supp. 256, 259. 

English Law 

The court of the admiral, perhaps erected by 
Edward III, 3 Bla.Comm. 69, or as early , as the 
time of Henry I. 

The building where the lords of the admiralty 
transact business. 

ADMIRALTY, FIRST LORD OF THE. The nor- 
mal head of the executive department of state 
which presides over the naval forces of the king- 
dom is the lord high admiral, but in practice the 
functions of the great office are discharged by sev- 
eral Lords Commissioners, of whom one, being 
the chief, is called the "First Lord," and is a mem- 
ber of the Cabinet. He is assisted by other lords, 
called Sea Lords, and by various secretaries. 

ADMISSIBLE. Pertinent and proper to be con- 
sidered in reaching a decision. Used with refer- 
ence to the issues to be decided in any judicial 
proceeding. 

As applied to evidence, the term means that it is 
of such a character that the court or judge is 
bound to receive it; that is, allow it to be intro- 
duced. 

ADMISSION. 

Bail 

The order of a competent court or magistrate 
that a person accused of crime be discharged from 
actual custody upon the taking of bail. People v. 
Solomon, 15 Pac. 4, 5 Utah, 277. 


Admitting to bail is a judicial act to be performed by a 
court or judicial officer, Trevathan v. Mutual Life Ins. Co. 
of New York, 166 Or. 515, 113 P.2d 621, 624; and by "al-. 
lowing bail" or "admitting to bail" is not meant the 
formal justification, subscription, or acknowledgment by 
the sureties, the term first mentioned relating to the order 
determining that the offense is bailable and fixing the 
amount of undertaking, and "taking the bail': meaning the 
final acceptance or approval of it by the court. Clatsop 
County v. Wuopio, 95 Or. 30, 186 P. 547. 

English Ecclesiastical Law 

The act of the bishop, who, on approval of the 
clerk presented by the patron, after examination, 
declares him fit to serve the cure of the church 
to which he is presented, by the words "admitto 
to habilem," I admit thee able. 1 Crabb, Real 
Prop. p. 138, § 123. 

Immigration Laws 

Authorities accepting alien seaman into body of 
our inhabitants as possible resident. U. S. ex rel. 
Georgas v. Day, C.C.A.N.Y., 43 F.2d 917, 919. 

Membership in Corporation 

The act of a corporation or company by which 
an individual acquires the rights of a member of 
such corporation or company. 

Practice as Attorney at Law 

The act by which attorneys and counsellors be- 
come recognized as officers of the court and are 
allowed to practice. 

Testimony or Evidence 

Admission or concession by a party in pleading 
or as evidence. See Admissions. 

ADMISSIONALIS. In European law. An usher. 
Spelman. 

ADMISSIONS. Confessions, concessions or volun- 
tary acknowledgments made by a party of the 
existence of certain facts. Roosevelt v. Smith, 40 
N.Y.S. 381, 17 Misc. 323. More accurately regard- 
ed, they are statements by a party, or some one 
identified with him in legal interest, of the ex- 
istence of a fact which is relevant to the cause of 
his adversary. Brooks v. Sessoms, 171 S.E. 222, 
223, 47 Ga.App. 554. They are against the interest 
of the party making them. Little Fay Oil Co. v. 
Stanley, 90 Okl. 265, 217 P. 377, 378. 

It is not essential that an "admission" be contrary to 
interest of party at time it is made; it is enough if it be 
inconsistent with position which party takes either in 
pleadings or at trial. Harvey v. Provandie, 83 N.H. 236, 
141 A. 136, 140. 

The term "admission" is usually applied to civil trans- 
actions and to those matters of fact in criminal cases which 
do not involve criminal intent, while the term "confession" 
is generally restricted to acknowledgments of guilt. Peo- 
ple v. Sourisseau, 62 Cal.App.2d 917, 145 P.2d 916, 923. 
State v. Lindsey, 26 N.M. 526, 194 P. 877, 878. 

An "admission" as applied in criminal cases is 
the avowal of a fact or of circumstances from 
which guilt may be inferred, but only tending to 
prove the offense charged, and not amounting to 
a confession of guilt. Theis v. State, Ga., 164 S. 


68 



ADM'R 


E. 456, 457. A statement by defendant of fact or 
facts pertinent to issues tending, in connection 
with proof of other facts or circumstances, to 
prove guilt, but which is, of itself, insufficient to 
authorize conviction. Commonwealth v. Elliott, 
292 Pa. 16, 140 A. 537, 538. Does not include 
statements which are part of the res gestw. State 
v. Clark, 102 Mont. 432, 58 P.2d 276, 278. 

Direct, called also express, admissions are those which 
are made in direct terms. 

Implied, admissions are those which result from some act 
or failure to act of the party. Part payment of a debt is an 
admission of liability to pay debt. Hart v. Deshong, Del., 

1 Terry 218, 8 A. 2d 85, 87. Defendants' failure to specifi- 
cally deny their signatures to notes, "admission" that they 
signed the acknowledgments. Haas v. Johnson, 203 La. 
697, 14 So. 2d 606, 608. Undenied accusations were implied 
"admission". State v. Postal, 215 Minn. 427, 10 N.W.2d 
373, 378. 

Incidental admissions are those made in some other con- 
nection, or involved in the admission of some other fact. 

Judicial admissions are those made in court by a per- 
son's attorney for the purpose of being used as a substitute 
for the regular legal evidence of the facts at the trial. 
Martin v. State, 46 Okl.Cr. 411, 287 P. 424. Such as are 
made voluntarily by a party, which appear of record in the 
proceedings of the court. Formal acts done by a party or 
his attorney in court on the trial of a cause for the purpose 
of dispensing with proof by the opposing party of some 
fact claimed by the latter to be true. Wiley v. Rutland R. 
Co., 86 Vt. 504, 86 A. 808, 810. Concession by defendant 
that she had executed a bill of sale for the automobile to 
intervener to secure an indebtedness was an "admission 
in judicio" by defendant against her title to the automo- 
bile. McDay v. Long, 63 Ga.App. 421, 11 S.E.2d 395, 399. 
But opening statements of counsel are not, technically, 
"admissions." Wilkey v. State ex rel. Smith, 238 Ala. 595, 
192 So. 588, 591. See Acquiescence; Quasi- Admissions; 
True Admission. 

Pleading 

The acknowledgment or recognition by one par- 
ty of the truth of some matter alleged by the 
opposite party, made in a pleading, the effect of 
which is to narrow the area of facts or allegations 
required to be proved by evidence. Connecticut 
Hospital v. Brookfield, 69 Conn. 1, 36 A. 1017. 

An allegation not denied is deemed not controverted, and 
silence of pleader is usually treated as an admission 
against him for purpose of the action. Doughty v. Pallis- 
sard, 3 N.Y.S.2d 452, 453, 167 Misc. 55. Generally plead- 
ings must be regarded as "judicial admissions", rather 
than ordinary "admissions". Hughes v. Fort Worth Nat. 
Bank, Tex.Civ.App., 164 S.W.2d 231, 232. 

In confession and avoidance, admission of truth of op- 
posite party's pleading is made. 

Express admissions may be made of matters of fact only. 
See Confession and Avoidance. 

In Equity. Partial admissions are those which are de- 
livered in terms of uncertainty, mixed up with explanatory 
or qualifying circumstances. 

Plenary admissions are those which admit the truth of 
the matter without qualification, whether it be asserted 
as from information and belief or as from actual knowl- 
edge. See Burrell v. Hackley, C.C.N.Y., 35 F. 833. 

"Admissions against interest" are any state- 
ments made by or attributable to a party to an 
action, which constitute admissions against his 
interest and tend to establish or disprove any ma- 
terial fact in the case. Kellner v. Whaley, 148 
Neb. 259, 27 N.W.2d 183, 189. 

ADMIT. To allow, receive, or take; to suffer one 
to enter; to give possession; to license. Gregory 
v. United States, 17 Blatchf. 325, 10 Fed.Cas. 1195. 


Confess. Provident Life & Accident Ins. Co. v. 
Fodder, 99 Ind.App. 556, 193 N.E. 698, 700. Un- 
equivocal acknowledgment of guilt. Ex parte 
Tozier, D.C.Me., 2 F.2d 268, 269. See Admission; 
Admissions. 

ADMITTANCE. In English law, the act of giving 
possession of a copyhold estate. It is of three 
kinds: (1) Upon a voluntary grant by the lord, 
where the land has escheated or reverted to him. 
(2) Upon surrender by the former tenant. (3) 
Upon descent, where the heir is tenant on his 
ancestor's death. 2 Bla.Comm. 366. 

ADMITTENDO CLERICO. An old English writ 
issuing to the bishop to establish the right of the 
Crown to make a presentation to a benefice. A 
writ of execution upon a right of presentation to a 
benefice being recovered in quare impedit, ad- 
dressed to the bishop or his metropolitan, requir- 
ing him to admit and institute the clerk or pre- 
sentee of the plaintiff. Reg.Orig. 33a. 

ADMITTENDO IN SOCIUM. A writ for asso- 
ciating certain persons, as knights and other 
gentlemen of the county, to justices of assize on 
the circuit. Reg.Orig. 206. 

ADMIXTURE. A substance formed by mixing; 
state of being mixed; act of mixing. 

ADMONISH. To caution or advise. People v. 
Pennington, 267 111. 45, 10 7 N.E. 871, 872. To 
counsel against wrong practices, or to warn 
against danger of an offense. Ft. Smith Light & 
Traction Co. v. Hendrickson, 126 Ark. 377, 189 S. 
W. 1064, 1067. 

ADMONITION. A reprimand from a judge to a 
person accused, on being discharged, warning him 
of the consequences of his conduct, and intimating 
to him that, should he be guilty of the same fault 
for which he has been admonished, he will be 
punished with greater severity. Merlin, Repert. 
The admonition was authorized as a species of 
punishment for slight misdemeanors. In eccle- 
siastical law, this is the lightest form of punish- 
ment. 

Any authoritative oral communication or state- 
ment by way of advice or caution by the court to 
the jury respecting their duty or conduct as jurors; 
the admissibility or nonadmissibility of evidence, 
or the purpose for which any evidence admitted 
may be considered by them. Miller v. Noell, 193 
Ky. 659, 237 S.W. 373, 374. 

ADMONITIO TRINA. The threefold warning 
given to a 'prisoner who stood mute, before he 
was subjected to peine forte et dure (q. u.). 4 
Bl.Comm. 325; 4 Steph.Comm. 391. 

ADMORTIZATION. The reduction of property of 
lands or tenements to mortmain, in the feudal 
customs. 

ADM'R. Ths abbreviation will be judicially pre- 
sumed to mean "administrator." Moseley v. Mas- 
tin, 37 Ala. 216, 221. 


69 



ADNEPOS 


ADNEPOS. The son of a great-great-grandson. 
Calvinus, Lex. 

ADNEPTIS. The daughter of a great-great-grand- 
daughter. Calvinus, Lex. 

ADNICHILED. Annulled, canceled, made void. 
28 Hen. VIII. 

ADNLHILARE. In old English law, to annul; to 
make void; to reduce to nothing; to treat as 
nothing; to hold as or for nought. 

ADNOTATIO. In the civil law, the subscription 
of a name or signature to an instrument. Cod. 4, 
19, 5, 7. 

A rescript (q. v.) of the prince or emperor, signed with 
his own hand, or sign-manual. Cod. 1, 19, 1. "In the im- 
perial law, casual homicide was excused by the indulgence 
of the emperor, signed with his own .sign-manual, annota- 
tione principis. " 4 Bl.Comm. 187. 

ADOBE. Earth. In arid or desert regions, an 
alluvial or playa clay from which bricks are made 
for construction of houses, called "adobe" houses. 
See Sweeney v. Jackson County, 93 Or. 96, 178 P. 
365, 376. 

ADOLESCENCE. That age which follows puberty 
and precedes the age of majority. It commences 
for males at fourteen, and for females at twelve 
years, and continues until twenty-one years com- 
plete. 

ADOPT. To accept, appropriate, choose, or select; 
to make that one's own (property or act) which 
was not so originally. 

To adopt a route for the transportation of the mail 
means to take the steps necessary to cause the mail to be 
transported over that route. Rhodes v. U. S., Dev.Ct.Cl. 
47. To adopt a contract is to accept it as binding, notwith- 
standing some defect which entitles the party to repudiate 
it. Thus, when a person affirms a voidable contract, or 
ratifies a contract made by his agent beyond his authority, 
he is sometimes said to adopt it. Sweet. Strictly, how- 
ever, the word "adopt" should be used to apply to void 
transactions, while the word "ratify" should be limited to 
the final approval of a voidable transaction by one who 
theretofore had the optional right to relieve himself from 
its obligations. United German Silver Co. v. Bronson, 92 
Conn. 266, 102 A. 647, 648. "Adoption" of a contract by one 
not a party thereto is of the nature of a novation. Edwards 
v. Heralds of Liberty, 263 Pa. 548, 107 A. 324, 326. See Af- 
firm. 

To accept, consent to, and put into effective op- 
eration; as in the case of a constitution, constitu- 
tional amendment, ordinance, or by-law. Real v. 
People, 42 N.Y. 282; People v. Norton, 59 Barb. 
(N.Y.) 191. A Code. City of Albany v. Nix, 21 
Ala. App. 164, 106 So. 199, 200. Statements in an 
application appearing above insured's signature. 
Republic Mut. Ins. Co. v. Wilson, 66 Ohio App.. 522, 
35N.E.2d467, 468. 

To take into one's family the child of another 
and give him or her the rights, privileges, and 
duties of a child and heir. State v. Thompson, 
13 La.Ann. 515; Abney v. De Loach, 84 Ala. 393. 

Adoption of children was a thing unknown to the com- 
mon law, but was a familiar practice under the Roman law 
and in those countries where the civil law prevails, as 
France and Spain. Butterfield v. Sawyer, 187 111. 598, 58 
N.E. 602, 52 L.R.A. 75, 79 Am.St.Rep. 246. Creature of the 
law, and statutory requirements must be strictly carried 
out. Owles v. Jackson, 199 La. 940, 7 So. 2d 192, 194. 


To accept an alien as a citizen or member of a 
community or state and invest him with corres- 
ponding rights and privileges, either (in general 
and untechnical parlance) by naturalization, or 
by an act equivalent to naturalization, as where 
a white man is "adopted" by an Indian tribe. 
Hampton v. Mays, 4 Ind.T. 503, 69 S.W. 1115. 

ADOPTION. The taking and receiving as one's 
own that to which he bore no prior relation, color- 
able or otherwise. Davies v. Lahann, C.C.A.N.M., 
145 F.2d 656, 659. The act of one who takes an- 
other's child into his own family, treating him as 
his own, and giving him all the rights and duties 
of his own child. See In re Chambers' Estate, 183 
N.Y.S. 526, 528, 112 Misc. 551. s in manner provided 
by and with consequences specified in statute. 
Fisher v. Robison, 329 Pa. 305, 198 A. 81, 82. A. 
juridicial act creating between two persons cer- 
tain relations, purely civil, of paternity and filia- 
tion. 6 Demol. § 1; Grimes v. Grimes, 207 N.C. 
778, 178 S.E. 573. The relation thereby created is 
a statutory status, not a contractual relation. 
Caruso v. Caruso, 13 N.Y.S.2d 239, 241, 175 Misc. 
290. Though legal adoption may confer on per- 
son adopted rights of actual relationship of child, 
simple "adoption" extends only to his treatment 
as member of the household. Shepherd v. Sov- 
ereign Camp, W.O.W., 166 Va. 488, 186 S.E. 113, 
116. See, also, Adopt. 

Adoption, properly speaking, refers only to persons who 
are strangers in blood, In re Lund's Estate, Cal. App., 148 
P.2d 709, 711. And is not synonymous with "legitimation," 
which refers to persons of the same blood. Blythe v. 
Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40. But this dis- 
tinction is not always observed. In re Presly's Estate, 113 
Okl. 160, 240 P. 89, 90. It is a relationship artificially cre- 
ated by statute. Borner v. Larson, 70 N. D. 313, 293 N.W. 
836, 839. 

ADOPTION BY PUBLIC ACKNOWLEDGMENT. 
See Legitimate. 

ADOPTIVE ACT. An act of legislation which 
comes into operation within a limited area upon 
being adopted, in manner prescribed therein, by 
the inhabitants of that area. 

ADOPTIVUS. Lat. Adoptive. Applied both to 
the parent adopting, and the child adopted. Inst. 
2, 13, 4; Inst. 3, 1, 10-14. 

ADPROMISSOR. In the civil and Scotch law, a 
guarantor, surety, or cautioner; a peculiar species 
of fidejussor; one who adds his own promise to 
the promise given by the-principal debtor, whence 
the name. 

ADQUIETO. Payment. Blount. 

ADRECTARE. To set right, satisfy, or make 
amends. 

ADRHAMIRE. In old European law, to under- 
take, declare, or promise solemnly; to pledge; to 
pledge one's self to make oath. Spelman. 

ADRIFT. Sea-weed, between high and low water- 
mark, which has not been deposited on the shore, 
and which during flood-tide is moved by each ris- 
ing and receding wave, is adrift, although the 


70 



ADULTERY 


bottom of the mass may touch the beach. An- 
thony v. Gifford, 2 Allen (Mass.) 549. 

ADROGATION. In the civil law, the adoption of 
one who was impubes; that is, if a male, under 
fourteen years of age; if a female, under twelve. 
Dig. 1, 7, 17, 1. 

ADS. An abbreviation for ad sectam (q. v.), 
meaning "at the suit of." Bowen v. Sewing Mach. 
Co., 86 111. 11. 

ADSCENDENTES. Lat. In the civil law, ascend- 
ants. Dig. 23, 2, 68; Cod. 5, 5, 6. 

ADSCRIPT!. See Adscriptus. 

ADSCRIPTI GLEBIE. Slaves who served the 
master of the soil, who were annexed to the land, 
and passed with it when it was conveyed. Cal- 
vinus, Lex. 

In Scotland, as late as the reign of George III., laborers 
in collieries and salt works were bound to the coal-pit or 
salt work in which they were engaged, in a manner similar 
to that of the adscripti of the Romans. Bell. These servi 
adscript i (or adscriptitii) glebce held the same position as 
the villeins regardant of the Normans; 2 Bla.Com. 93. See 
1 Poll. & Mait. 372. 

ADSCRIPTITII. Lat. A species of serfs or 
slaves. See 1 Poll. & Mait. 372. 

Those persons who were enrolled and liable to 
be drafted as legionary soldiers. Calvinus, Lex. 

ADSCRIPTUS. In the civil law, added, annexed, 
or bound by or in writing; enrolled, registered; 
united, joined, annexed, bound to, generally. Ser- 
vus colonce adscriptus, a slave annexed to an es- 
tate as a cultivator. Dig. 19, 2, 54, 2. Fundus 
adscriptus, an estate bound to, or burdened with 
a duty. Cod. 1 1, 2, 3. 

ADSESSORES. Side judges. Assistants or ad- 
visers of the regular magistrates, or appointed as 
their substitutes in certain cases. Calvinus, Lex. 
See Assessor. 

ADSTIPULATOR. In Roman law, an accessory 
party to a promise, who received the same prom- 
ise as his principal did, and could equally receive 
and exact payment; or he only stipulated for a 
part of that for which the principal stipulated, 
and then his rights were coextensive with the 
amount of his own stipulation. One who supplied 
the place of a procurator at a time when the law 
refused to allow stipulations to be made by pro- 
curation. Sandars, Just. Inst. (5th Ed.) 348. 

ADULT. 

Civil Law 

A male infant who has attained the age of four- 
teen; a female infant who has attained the age 
of twelve. Dom.Liv.Prel. tit. 2, § 2, n. 8. 

Common Law 

One who has attained the legal age of majority, 
generally 21 years, though in some states women 
are legally "adults" at 18. Schenault v. State, 
10 Tex.App. 410; Lucas v. United States Fidelity 
& Guaranty Co., 174 A. 712, 713, 113 N.J.Law, 491. 


ADULTER. Lat. One who corrupts; one who 
seduces another man's wife. Adulter solidorum. 
A corruptor of metals; a counterfeiter. Calvinus, 
Lex. 

ADULTERA. In the civil law, an adulteress; a 
woman guilty of adultery. Dig. 48, 5, 4, pr.; Dig. 
48, 5, 15, 8. 

ADULTERATION. The act of corrupting or de- 
basing; the act of mixing something impure or 
spurious with something pure or genuine, or an 
inferior article with a superior one of the same 
kind. State v. Norton, 24 N.C. 40. The term is 
generally applied to the act of mixing up with 
food or drink intended to be sold other matters of 
an inferior quality, and usually of a more or less 
deleterious quality. Grosvenor v. Duffy, 121 Mich. 
220, 80 N.W. 19, though the artificially colored 
poppy seeds were not deleterious and had the 
same food value as the naturally colored seeds. 
U. S. v. Two Bags, Each Containing 110 Pounds, 
Poppy Seeds, C.C.A.Ohio, 147 F.2d 123, 127. 

ADULTERATOR, Lat. A corrupter. In the civil 
law. A forger; a counterfeiter. Adulteratores 
monetce, counterfeiters of money. Dig. 48, 19, 
16, 9. 

ADULTERINE. Begotten in an adulterous inter- 
couite. Those are not deemed adulterine who are 
begotten, of a woman openly married through ig- 
norance of a former wife being alive. In the 
Roman and canon law, adulterine bastards were 
distinguished from such as were the issue of two 
unmarried persons, and the former were treated 
with more severity, not being allowed the status 
of natural children, and being ineligible to holy 
orders. 

ADULTERINE BASTARDS. The offspring of 
adulterous relations. Kotzke v. Kotzke's Estate, 
205 Mich. 184, 171 N.W. 442, 443. See, also, Adul- 
terous Bastards. 

ADULTERINE GUILDS. Traders acting as a 
corporation without a charter, and paying a fine 
annually for permission to exercise their usurped 
privileges. Smith, Wealth Nat. b. 1, c. 10. 

ADULTERIUM. A fine anciently imposed for the 
commission of adultery. 

ADULTEROUS BASTARDS. Those produced by 
an unlawful connection between two persons, who 
at the time when the child was conceived, were, 
either of them or both, connected by marriage 
with some other person. Civil Code La. art. 182. 

ADULTERY. Voluntary sexual intercourse of a 
married person with a person other than the of- 
fender's husband or wife. Franzetti v. Franzetti, 
Tex.Civ.App., 120 S.W.2d 123, 127. 

In some states, however, as was also true under the Ro- 
man and Jewish law, this crime is committed only when 
the woman is married to a third person ; the unlawful com- 
merce of a married man with an unmarried woman not 
being of the grade of adultery. Corn. v. Call, 2 1 Pick. 
Mass. 509, 32 Am. Dec. 284, and note; Com. v. Elwell, 2 
Mete. 190, 39 Am. Dec. 398. In other jurisdictions, both 
parties are guilty of adultery, even though only one of 


71 



ADULTERY 


them is married. Goodwin v. State, 70 Tex.Cr.R. 600, 158 
S. W. 274, 275. In some jurisdictions, also, a distinction is 
made between double and single adultery, the former being 
committed where both parties are married to other per- 
sons, the latter where one only is so married. Hunter v. 
U. S., 1 Pin.Wis. 91, 39 Am. Dec. 277. 

Open and Notorious Adultery 

To constitute living in open and notorious adul- 
tery, the parties must reside together publicly in 
the face of society, as if conjugal relations existed 
between them, and their so living and the fact 
that they are not husband and wife must be 
known in the community. McCullough v. State, 
107 Tex.Cr.R. 258, 296 S.W. 530. 

ADVANCE, v. To pay money or render other 
value before it is due; to furnish something be- 
fore an equivalent is received; to loan; to furnish 
capital in aid of a projected enterprise, in expecta- 
tion of return from it. Powell v. Allan, 70 Cal. 
App. 663, 234 P. 339, 344. To supply beforehand; 
to furnish on credit or before goods are delivered 
or work done; to furnish as a part of a stock or 
fund; to pay money before it is due; to furnish 
money for a specific purpose understood between 
the parties, the money or sum equivalent to be 
returned; furnishing money or goods for others 
in expectation of reimbursement; money or com- 
modities furnished on credit; a loan, or gift or 
money advanced to be repaid conditionally; may. 
be equivalent to "pay." In re Altman's Will, Sur., 
6 N.Y.S.2d 972, 975. 

An agreement to "advance" money for personal property 
implies a loan with property as pledge, rather than a pay- 
ment of purchase money in sale. Shelley v. Byers, 73 Cal. 
App. 44, 238 P. 177, 182. 

ADVANCE PAYMENT. Payments made in an- 
ticipation of a contingent or fixed future liability. 
Smith v. Unity Industrial Life Ins. Co., La. App., 
13 So.2d 129, 132. 

ADVANCEMENT. Money or property given by 
a parent to his child or, sometimes, presumptive 
heir, or expended by the former for the latter's 
benefit, by way of anticipation of the share which 
the child will inherit in the parent's estate and 
intended to be deducted therefrom. It is the lat- 
ter circumstance which differentiates an advance- 
ment from a gift or a loan. Brewer's Adm'r v. 
Brewer, 181 Ky. 400, 205 S.W. 393, 396; In re 
Allen's Estate, 207 Pa. 325, 56 A. 928. 

A perfect and irrevocable gift, In re Wiese's Estate, 222 
Iowa 935, 270 N.W. 380, 382. Passing title in lifetime of 
donor, Burkhart v. Lowery, 115 Ind.App. 445, 59 N.E.2d 
732, 734; but which must be accounted for by donee on 
distribution of donor's estate. In re Beier's Estate, 205 
Minn. 43, 284 N.W. 833, 835, 836, 837, 838. "Advancement," 
unlike "ademption" (q. v.), applies only to cases of in- 
testacy. Ellard v. Ferris, 91 Ohio St. 339, 110 N.E. 476, 479. 
An "advancement by portion," within the meaning of the 
statute, is a sum given by a parent to establish a child in 
life, (as by starting him in business,) or to make a provi- 
sion for the child, (as on the marriage of a daughter). L. 
R. 20 Eq. 155. See Ademption; Gift. 

ADVANCES. Moneys paid before or in advance 
of the proper time of payment; money or com- 
modities furnished on credit; a loan or gift, or 
money advanced to be repaid conditionally. Pow- 
der Co. v. Burkhardt, 97 U.S. 1 10, 24 L.Ed. 973. 


This word, when taken in its strict legal sense, does not 
mean gifts, (advancements,) and does mean a sort of loan; 
and, when taken in its ordinary and usual sense, it in- 
cludes both loans and gifts, — loans more readily, perhaps, 
than gifts. Landrum & Co. v. Wright, 1 1 Ala. App. 406, 66 
So. 892. 

Payments advanced to the owner of property 
by a factor or broker on the price of goods which 
the latter has in his hands, or is to receive, for 
sale. 

"Loans" are repayable at maturity, while "advances" 
are not repaid by party receiving them, but are covered 
by proceeds of consigned goods. People ex rel. James Tal- 
bott, Inc., v. Goldfogle, 211 N.Y.S. 122, 123, 213 App.Div. 
719. 

ADVANTAGE. Any state, condition, circum- 
stance, opportunity, or means specially favorable 
to success, prosperity, interest, reputation, or any 
desired end. Duvall v. State, 92 Ind.App. 134, 
166 N.E. 603, 604. Preference or priority. United 
States v. Preston, 4 Wash. 446, Fed. Cas. No. 16,087. 

ADVANTAGIUM. In old pleading, an advan- 
tage. Co.Ent. 484; Townsh.Pl. 50. 

ADVENA. In Roman law, one of foreign birth, 
who has left his own country and settled else- 
where, and who has not acquired citizenship in 
his new locality; often called albanus. Du 
Cange. 

ADVENT. A period of time recognized by the 
English common and ecclesiastical law, beginning 
on the Sunday that falls either upon St. Andrew's 
day, being the 30th of November, or the next to 
it, and continuing to Christmas day. Wharton. 

ADVENTITIOUS. That which comes incidental- 
ly, fortuitously, or out of the regular course. 
"Adventitious value" of lands, see Central R. 
Co. v. State Board of Assessors, 49 N.J.Law, 1, 7 
A. 306. 

ADVENTITIUS. Lat. Fortuitous; incidental; 
coming from an unusual source. Adventitia bona 
are goods which fall to a man otherwise than by 
inheritance. Adventitia dos is a dowry or portion 
given by some friend other than the parent. 

ADVENTURA. An adventure. 2 Mon.Angl. 615; 
Townsh.Pl. 50. Flotson, jetson, and lagon are 
styled adventurce maris, (adventures of the sea.) 
Hale, De Jure Mar. pt. 1, c. 7. 

ADVENTURE. A hazardous and striking enter- 
prise, a bold undertaking in which hazards are to 
be met and issue hangs upon unforeseen events. 
Bond v. O'Donnell, 205 Iowa, 902, 218 N.W. 898, 
902, 63 A.L.R. 901. 

Generally 

Adventure, bill of. In mercantile law, a writing 
signed by a merchant, stating that the property 
in goods shipped in his name belongs to another, 
to the adventure or chance of which the person 
so named is to stand, with a covenant from the 
merchant to account to him for the produce. 

Gross adventure. In maritime law, a loan on 
bottomry. So named because the lender, in case 


72 



ADVERSE 


of a loss, or expense incurred for the common 
safety, must contribute to the gross or general 
average. 

Joint adventure. A commercial or maritime en- 
terprise undertaken by 'several persons jointly; 
a limited partnership, — not limited in the statu- 
tory sense as to the liability of the partners, but 
as to its scope and duration. Lobsitz v. E. Liss- 
berger Co., 168 App.Div. 840, 154 N.Y.S. 556, 557. 
A special partnership. McDaniel v. State Fair of 
Texas, Tex.Civ.App., 286 S.W. 513, 517. An as- 
sociation of two or more persons to carry out a 
single business enterprise for profit, for which 
purpose they combine their property, money, ef- 
fects, skill, and knowledge. Forman v. Lumm, 
214 App.Div. 579, 212 N.Y.S. 487. A special com- 
bination of two or more persons, where, in some 
specific adventure, a profit is jointly sought, with- 
out any actual partnership or corporate designa- 
tion. Griffin v. Reilly, Tex.Civ.App., 275 S.W. 242, 
246. 

It is ordinarily, but not necessarily, limited to a single 
transaction, Forbes v. Butler, 66 Utah, 373, 242 P. 950, 956, 
which serves to distinguish it from a partnership, Barry 
v. Kern, 184 Wis. 266, 199 N.W. 77, 78. But the business of 
conducting it to a successful termination may continue for 
a number of years. Elliott v. Murphy Timber Co., 117 Or. 
387, 244 P. 91, 93, 48 A.L.R. 1043. There is no real dis- 
tinction between a "joint adventure" and what is termed 
a "partnership for a single transaction." Atlas Realty Co. 
v. Galt, 153 Md. 586, 139 A. 285, 286. A "joint adventure," 
while not identical with a partnership, is so similar in its 
nature and in the relations created thereby that the rights 
of the parties as between themselves are governed practi- 
cally by the same rules that govern partnerships. Goss v. 
Lanin, 170 Iowa 57, 152 N.W. 43, 45. 

Marine Insurance 

A very usual word in policies of marine insur- 
ance, and everywhere used as synonymous, or 
nearly so, with "perils." It is often used by the 
writers to describe the enterprise or voyage as a 
"marine adventure" insured against. Moores v. 
Louisville Underwriters, C.C.Tenn., 14 Fed. 233. 

Mercantile Law 

Sending goods abroad under charge of a super- 
cargo or other agent, at the risk of the sender, 
to be disposed of to the best advantage for the 
benefit of the owners. 

The goods themselves so sent. 

ADVENTURER. One who undertakes uncertain 
or hazardous actions or enterprises. It is also 
used to denote one who seeks to advance his 
own interests by unscrupulous designs on the 
credulity of others. It has been held that to im- 
pute that a person is an adventurer is a libel; 18 
L.J.C.P. 241. 

ADVERSARIA. (From Lat. adversa, things re- 
marked or ready at hand.) Rough memoranda, 
common-place books. 

ADVERSARY. A litigant-opponent, the opposite 
party in a writ or action. 

ADVERSARY PROCEEDING. One having oppos- 
ing parties; contested, as distinguished from an 


ex parte application; one of which the party 
seeking relief has given legal warning to the oth- 
er party, and afforded the latter an opportunity 
to contest it. Excludes an adoption proceeding. 
Platt v. Magagnini, 187 P. 716, 718, 110 Wash. 
39. 

ADVERSE. Opposed; contrary; in resistance or 
opposition to a claim, application, or proceeding. 
Having opposing interests; having interests for 
the preservation of which opposition is essential. 
In re National Lock Co., D.C.I11., 9 F.Slipp. 432, 
433. 

As to adverse "Claim," "Enjoyment," "User," 
"Verdict," "Witness," see those titles. 

ADVERSE INTEREST. The "adverse interest" 
of a witness, so as to permit cross-examination by 
the party calling him, must be so involved in the 
event of the suit that a legal right or liability will 
be acquired, lost, or materially affected by the 
judgment, and must be such as would be pro- 
moted by the success of the adversary of the par- 
ty calling him. Dinger v. Friedman, 279 Pa. 8, 
123 A. 641, 643. On petition in bankruptcy court 
for removal of trustee's attorney, attorney has an 
interest adverse to trustee. In re Mallow Hotel 
Corporation, D.C.Pa., 18 F.Supp. 15, 17. 

ADVERSE PARTY. An "adverse party" entitled 
to notice of appeal is every party whose interest 
in relation to the judgment or decree appealed 
from is in conflict with the modification or rever- 
sal sought by the appeal. 

Every party interested in sustaining the judgment or 
decree. Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909. 
All parties appearing against losing party unless reversal 
of case will not be to party's detriment. Shea v. Shea, 
Iowa, 264 N.W. 590. Any party who would be prejudi- 
cially affected by a modification or reversal of the judg- 
ment appealed from. Great Falls Nat. Bank v. Young, 67 
Mont. 328, 215 P. 651, 652. One who has interest in oppos- 
ing object sought to be accomplished by appeal. In re 
Baxter's Estate, 94 Mont. 257, 22 P.2d 182. Party to rec- 
ord, whose interest in subject-matter of appeal is adverse 
to, reversal or modification of judgment or order appealed 
from. MacDonald v. Superior Court in and for City and 
County of San Francisco, 101 Cal.App. 423, 281 P. 672, 673. 
A party who, by the pleadings, is arrayed on the opposite 
side. Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 212 
N.W. 533. The other party to the action. Highland v. 
Hines, 80 N.H. 179, 1 16 A. 347, 349. A party to the record 
for, or against, whom judgment is sought. Merchants' 
Supply Co. v. Hughes' Ex'rs, 139 Va. 212, 123 S.E. 355, 356. 
"Opposite" party synonymous. In re Wah-shah-she-me- 
tsa-he's Estate, 111 Okl. 177, 239 P. 177, 178. And term is 
not necessarily confined to plaintiffs as against defendants, 
or vice versa. Arwood v. Hill's Adm'rs, 135 Va. 235, 117 
S.E. 603, 605. But a defaulting defendant is not an 
"adverse party" ; Holt v. Empey, 32 Idaho, 106, 178 P. 
703; nor is one who is named as a party but is not served; 
Kissler v. Moss, 26 Idaho, 516, 144 P. 647. Compare Fer- 
gen v. Lonie, 50 S.D. 328, 210 N.W. 102, 103 (garnishment 
debtor not served in garnishment proceeding). 

ADVERSE POSSESSION. A method of acquisi- 
tion of title by possession for a statutory period 
under certain conditions. Lowery v. Garfield 
County, Mont., 208 P.2d 478, 486. It has been de- 
scribed as the statutory method of acquiring title 
to land by limitation. Field v. Sosby, Tex. Civ. 
App., 226 S.W.2d484, 486. 

The possession must be actual, Ortiz v. Pacific 
States Properties, Cal.App., 215 P.2d 514, 516; 

73 



ADVERSE 


adverse, Flanery v. Greene, 158 S.W.2d 413, 415, 
289 Ky. 244; under claim of right, Thomas v. 
Durchslag, 111., 90 N.E.2d 200, 204, 404 111. 581; 
continuous, Davis v. Federal Land Bank of Col- 
umbia, 13 S.E.2d 417, 419, 219 N.Car. 248; open 
Wilberforce University v. College of Ed. and 
Indus. Arts at Wilberforce University, 90 N.E.2d 
172, 173, 86 Ohio App. 121; notorious, Edie v. 
Coleman, 141 S.W.2d 238, 242, 243, 235 Mo.App. 
1289; exclusive, Laudati v. State, 30 N.Y.S.2d 267, 
270, and hostile, Singley v. Dempsey, 42 So. 2d 609, 
612, 252 Ala. 677. Although color of title is not 
essential, Roesch v. Gerst, 138 P.2d 846, 851, 852, 
18 Wash. 2d 294, it is of great evidentiary value 
in establishing adverse possession, Lincoln v. 
Mills, 2 So. 2d 809, 811, 191 Miss. 512. 

Adverse possession depends on intent of occu- 
pant to claim and hold real property in opposition 
to all the world, Sertic v. Roberts, 136 P.2d 248, 
171 Ore. 121; and also embodies the idea that own- 
er of or persons interested in property have knowl- 
edge of the assertion of ownership by the occu- 
pant, Field v. Sosby, Tex.Civ.App., 226 S.W.2d 484, 
486. 

Payment of taxes alone is not sufficient in it- 
self to establish adverse possession, Blitch v. 
Sapp, 194 So. 328, 330, 142 Fla. 166. It is manda- 
toiy that the element of continuous possession 
exist for the full statutory period, Wells v. Tietge, 
9 N.W.2d 180, 182, 143 Neb. 230. 

ADVERSUS. In the civil law, against, (contra.) 
Adversus bonos mores, against good morals. Dig. 
47, 10, 15. 

Adversus extraneos vitiosa possessio prodesse 
solet. Prior possession is a good title of owner- 
ship against all who cannot show a better. D. 
41. 2. 53; Salmond, Jurispr. 638. 

ADVERTISE. To give notice to, inform or notify, 
give public notice of, announce publicly, notice 
or observe. People v. Hopkins, 263 N.Y.S. 290, 
147 Misc. 12. To advise, announce, apprise, com- 
mand, give notice of, inform, make known, pub- 
lish. People v. Montague, 274 N.W. 347, 351, 280 
Mich. 610. On call to the public attention by any 
means whatsoever; Commonwealth v. Allison, 
227 Mass. 57, 116 N.E. 265, 266. 

It includes publication by hand bills, signs, bill boards, 
sound trucks and radio, Rust v. Missouri Dental Board, 
348 Mo. 616, 155 S.W.2d 80, 83; or in a newspaper, or by 
means of placards, or other written public notices ; Nichols 
v. Nichols, 192 Ala. 206, 68 So. 186, 187. It is merely iden- 
tification and description, apprising of quality and place, 
Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 
377, 60 L.Ed. 679. And "advertising purposes" are not 
limited to matters of vocation, or even avocation, but 
include advertisements essentially for unselfish purposes, 
Almind v. Sea Beach Ry. Co., 141 N.Y.S. 842, 843, 157 
App.Div. 230. 

ADVERTISEMENT. Notice given in a manner 
designed to attract public attention. Edwards v. 
Lubbock County, Tex., 33 S.W.2d 482, 484. Infor- 
mation communicated to the public, or to an in- 
dividual concerned, as by handbills or the news- 
paper. First Nat. Corporation v. Perrine, 99 
Mont. 454, 43 P.2d 1073, 1077. 


A sign-board, erected at a person's place of business, 
giving notice that lottery tickets are for sale. Com. v. 
Hooper, 5 Pick.Mass. 42. 

ADVERTISEMENTS OF QUEEN ELIZABETH. 
Certain articles or ordinances drawn up by Arch- 
bishop Parker and some of the bishops in 1564, at 
the request of Queen Elizabeth, the object of 
which was to enforce decency and uniformity in 
the ritual of the church. The queen subsequently 
refused to give her official sanction to these ad- 
vertisements, and left them to be enforced by the 
bishops under their general powers. Phillim.Ecc. 
Law, 910; 2 Prob.Div. 276; 354. 

ADVICE. View; opinion; the counsel given by 
lawyers to their clients; an opinion expressed as 
to wisdom of future conduct. Hughes v. Van 
Bruggen, 44 N.M. 534, 105 P.2d 494, 496. 

The word has several different meanings, among others, 
as follows : Information or notice given; intelligence ; — 
usually information communicated by letter ; — Chiefly as 
to drafts or bills of exchange ; as, a letter of advice. — 
Advice implies real or pretended knowledge, often pro- 
fessional or technical, on the part of the one who gives it. 
Provident Trust Co. v. National Surety Co., D.C.Pa., 44 
F.Supp. 514, 515. 

The instruction usually given by one merchant 
or banker to another by letter, informing him of 
shipments made to him, or of bills or „drafts 
drawn on him, with particulars of date, or sight, 
the sum, and the payee. Bills presented for ac- 
ceptance or payment are frequently dishonored 
for want of advice. 

Letter of advice is a communication from one person to 
another, advising or warning the latter of something which 
he ought to know, and commonly apprising him before- 
hand of some act done by the writer which will ultimately 
affect the recipient. Chit. Bills, 162. 

ADVISARE, AD VI SARI. Lat. To consult, delib- 
erate, consider, advise; to be advised. Occurring 
in the phrase curia advisari 4vult, which see (usu- 
ally abbreviated cur. adv. vu/t, or C. A. V.,) the 
court wishes to be advised, or to consider of the 
matter. 

ADVISE. To give an opinion or counsel, or rec- 
ommend a plan or course of action; also to give 
notice. Long v. State, 23 Neb. 33, 36 N.W. 310. 
To encourage. Voris v. People, 75 Colo. 574, 227 
P. 551, 553. "Inform" or "acquaint." Ericson v. 
Steiner, 119 Cal.App. 305, 6 P.2d 298, 300. 

It is different in meaning from "instruct" or "persuade." 
Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, 497. 
Where a statute authorizes the trial court to advise the 
jury to acquit, the court has no power to instruct the jury 
to acquit. The court can only counsel, and the jury are 
not bound by the advice. People v. Horn, 70 Cal. 17, IIP. 
470. "Advise" imports that it is discretionary or optional 
with the person addressed whether he will act on such 
advice or not. State v. Downing, 23 Idaho, 540, 130 P. 461, 
462. 

ADVISED. Prepared to give judgment, after ex- 
amination and deliberation. "The court took time 
to be advised." 1 Leon. 187. 

ADVISEDLY. With deliberation; intentionally. 
15 Moore P.C. 147. 

ADVISEMENT. Consideration; deliberation; 
consultation. Drainage Dist. No. 1 of Lincoln 


74 



ADVOCATOR 


County v. Suburban Irr. Dist., 139 Neb. 460, 298 
N.W. 131, 134. The consultation of a court, after 
the argument of a cause by counsel, and before 
delivering their opinion. In re Hohorst, 150 U.S. 
662, 14 S.Ct. 221,37 L.Ed. 1211. 

ADVISORY. Counselling, suggesting, or advis- 
ing, but not imperative or conclusive. A verdict 
on an issue out of chancery is advisory. Watt v. 
Starke, 101 U.S. 252, 25 L.Ed. 826. Not binding 
on chancellor. Merritt v. Palmer, 289 Ky. 141, 
158S.W.2d 163, 165. 

ADVISORY OPINION. A formal opinion by 
judge or judges or a court or a law officer upon a 
question of law submitted by a legislative body 
or a governmental official, but not actually pre- 
sented in a concrete case at law. Douglas Oil 
Co. v. State, Tex.Civ.App., 81 S.W.2d 1064, 1077. 

Merely opinion of judges or court, which adjudicates 
nothing and is binding on no one, in exercise of wholly 
non or extra-judicial function. The expression ordinarily 
connotes the practice which existed in England from very 
early times of extra-judicial consultation of the judges by 
the Crown and the House of Lords. Douglas Oil Co. v. 
State, Tex.Civ.App., 81 S.W.2d 1064, 1077. 

ADVOCACY. The act of pleading for, supporting, 
or recommending active espousal. Gitlow v. Peo- 
ple of State of New York, 45 S.Ct. 625, 626, 268 
U.S. 652, 69 L.Ed. 1138. 

ADVOCARE. Lat. To defend; to call to one's 
aid; to vouch; to warrant. 

ADVOCASSIE. L. Fr. The office of an advocate; 
advocacy. Kelham. 

ADVOCATA. In old English law, a patroness; 
a woman who had the right of presenting to a 
church. Spelman. 

ADVOCATE, v. To speak in favor of; defend by 
argument. Ex parte Bernat, D.C.Wash., 255 F. 
429, 432. To support, vindicate, or recommend 
publicly. Butash v. State, 212 Ind. 492, 9 N.E.2d 
88, 90. Not for an educational purpose, but to 
disseminate controversial "propaganda," which 
means plan for publication of doctrine or system 
of principles. Leubuscher v. Commissioner of In- 
ternal Revenue, C.C.A., 54 f'.2d 998, 999. 

ADVOCATE, n. One who assists, defends, or 
pleads for another; one who renders legal advice 
and aid and pleads the cause of another before a 
court or a tribunal, a counselor. Haverty Furni- 
ture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 
697. 

A person learned in the law, and duly admitted 
to practice, who assists his client with advice, and 
pleads for him in open court. Holthouse. 

An assistant; adviser; a pleader of causes. 

Derived from advocare, to summon to one's assistance; 
advocatus originally signified an assistant or helper of any 
kind, even an accomplice in the commission of a crime; 
Cicero, Pro Ccecina, c. 8; Livy, lib. ii. 55; 47; Tertul- 
lian, De IcLola.tr. cap. xxiii. ; Petron. ' Satyric. cap. xv. 
Secondarily, it was applied to one called in to assist a 
party in the conduct of a suit; Inst. 1, 1 1, D, 50, 13. de 
extr. cogn. Hence, a pleader, which is its present signifi- 
cation. 


Civil and Ecclesiastical Law 

An officer of the court, learned in the law, who 
is engaged by a suitor to maintain or defend his 
cause. 

Generally 

— Advocate general. The adviser of the crown 
in England on questions of naval and military 
law. 

— Lord Advocate. The principal crown lawyer 
in Scotland, and one of the great officers of state 
of Scotland. It is his duty to act as public prose- 
cutor; but private individuals injured may prose- 
cute upon obtaining his concurrence. He is as- 
sisted by a solicitor general and four junior coun- 
sel, termed "advocates-depute." He has the pow- 
er of appearing as public prosecutor in any court 
in Scotland, where any person can be tried for an 
offense, or in any action where the crown is in- 
terested. Wharton. 

— Queen's advocate. A member of the College of 
Advocates, appointed by letters patent, whose of- 
fice is to advise and act as counsel for the crown 
in questions of civil, canon, and international law. 
His rank is next after the solicitor general. 

ADVOCATI. Lat. In Roman law, patrons; plead- 
ers; speakers. 

ADVOCATI ECCLESIZE. Advocates of the 
church. 

A term used in the ecclesiastical law to denote the 
patrons of churches who presented to the living on an 
avoidance. This term was also applied to those who were 
retained to argue the cases of the church. These were of 
two sorts : those retained as pleaders to argue the cases 
of the church and attend to its law-matters ; and advo- 
cates, or patrons of the advowson. Cowell ; Spelman, 
Gloss. 

ADVOCATI FISCI. In civil law, those chosen 
by the emperor to argue his cause whenever a 
question arose affecting his revenues. 3 Bla. 
Comm. 27. Advocates of the fisc, or revenue; fis- 
cal advocates, (qui causam fisci egissent.) Cod. 2, 
9, 1; Cod. 2, 7, 13. Answering, in some measure, 
to the king's counsel in English law. 

ADVOCATIA. In the civil law, the quality, func- 
tion, privilege, or territorial jurisdiction of an ad- 
vocate. 

The functions, duty, or privilege of an advo- 
cate. Du Cange, Advocatia. 

ADVOCATION. In Scotch law, a process by 
which an action may be carried from an inferior 
to a superior court before final judgment in the 
former. 

ADVOCATIONE DECIMARUM. A writ which 
lay for tithes, demanding the fourth part or up- 
wards, that belonged to any church. 

ADVOCATOR. In old practice, one who called 
on or vouched another to warrant a title; a 
voucher. Advocatus; the person called on, or 
vouched; a vouchee. Spelman; Townsh.Pl. 45. 

In Scotch practice, an appellant. 1 Broun, R. 
67. 


75 



ADVOCATUS 


ADVOCATUS. A pleader; a narrator. Bracton, 
412 a, 372 b. 

In the civil law, an advocate; one who managed 
or assisted in managing another's cause before 
a judicial tribunal. Called also "patronus. " Cod. 
2, 7, 14. But distinguished from causidicus. Id. 
2 , 6 , 6 . 

ADVOCATUS DIABOLI. In ecclesiastical law, 
the devil's advocate; the advocate who argues 
against the canonization of a saint. 

Advocatus est, ad quern pertinet jus advocationis 
alicujus ecclesim, ut ad ecclesiam, nomine pro- 
prio, non alieno, possit proesentare. A patron is 
he to whom appertains the right of presentation 
to a church, in such a manner that he may pre- 
sent to such a church in his own name, and not 
in the name of another. Co.Litt. 1 19. 

ADVOUTRER. In old English law, an adulterer. 
Beaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46 
L.R.A. 517. 

ADVOUTRY. In old English law, adultery be- 
tween parties both of whom were married. Hun- 
ter v. U. S., 1 Pin. (Wis.) 91, 39 Am.Dec. 277. Or 
the offense by an adulteress of continuing to live 
with the man with whom she committed the 
adultery. Cowell; Termes de la Ley. Sometimes 
spelled "advowtry." See Advoutrer. 

ADVOWEE, or AVOWEE. The person or patron 
who has a right to present to a benefice. Fleta, 
lib. 5, c. 14. 

ADVOWEE PARAMOUNT. The sovereign, or 
highest patron. 

ADVOWSON. In English ecclesiastical law, the 
right of presentation to a church or ecclesiastical 
benefice; the right of presenting a fit person to 
the bishop, to be by him admitted and instituted 
to a certain benefice within the diocese, which 
has become vacant. 2 Bl.Comm. 21; Co.Litt. 
1 19b, 120a. The person enjoying this right is 
called the "patron" (patronus) of the church, and 
was formerly termed "advocatus, " the advocate 
or defender, or in English, "advowee." Id.; 1 
Crabb, Real Prop. p. 129, § 117. 

When there is no patron, or he neglects to exercise his 
right within six months, it is called a lapse , and a title is 
given to the ordinary to collate to a church : when a pres- 
entation is made by one who has no right, it is called a 
usurpation. 

Advowsons are of different kinds. 

Advowson appendant is an advowson annexed to a 
manor, and passing with it, as incident or appendant to it, 
by a grant of the manor only, without adding any other 
words. 2 Bl.Comm. 22; Co.Litt. 120, 121; 1 Crabb, Real 
Prop. p. 130, § 118. 

Advowson collative. Where the bishop happens himself 
to be the patron, in which case (presentation being impos- 
sible, or unnecessary) he does by one act, which is termed 
"collation, " or conferring the benefice, all that is usually 
done by the separate acts of presentation and institution. 
2 Bl.Comm. 22, 23; 1 Crabb, Real Prop. p. 131, § 119. 

Advowson donative exists where the patron has the right 
to put his clerk in possession by his mere gift, or deed of 
donation, without any presentation to the bishop, or insti- 
tution by him. 2 Bl.Comm. 23; 1 Crabb, Real Prop. p. 131, 
§119. 


Advowson in gross is an advowson separated from the 
manor, and annexed to the person. 2 Bl.Comm. 22; Co. 
Litt. 120; 1 Crabb, Real Prop. p. 130, § 118; 3 Steph. 
Comm. 116. 

Advowson presentative is the usual kind of advowson, 
where the patron has the right of presentation to the 
bishop, or ordinary, and moreover to demand of him to 
institute his clerk, if he finds him canonically qualified. 2 
Bl.Comm. 22; 1 Crabb, Real Prop. p. 131, § 119. 

ADVOWTRY. See Advoutry. 

2EDES. Lat. In the civil law, a house, dwelling, 
temple, place of habitation, whether in the city 
or country. Dig. 30, 41, 5. In the country every- 
thing upon the surface of the soil passed under 
the term "cedes. " Du Cange; Calvin. 

IEDIFICARE. Lat. In civil and old English 
law, to make or build a house; to erect a building. 
Dig. 45, 1, 75, 7. 

JEdificare in tuo proprio solo non licet quod 
alteri noceat. 3 Inst. 201. To build upon your 
own land what may injure another is not lawful. 

A proprietor of land has no right to erect an edifice on 
his own ground, interfering with the due enjoyment of 
adjoining premises, as by overhanging them, or by throw- 
ing water from the roof and eaves upon them, or by 
obstructing ancient lights and windows. Broom, Max. 369. 

fEdificatum solo solo cedit. What is built upon 
land belongs to or goes with land. Broom, Max. 
172; Co.Litt. 4a. 

iEdificia solo cedunt. Buildings belong to [go 
with] the soil. Fleta, lib. 3, c. 2, § 12. 

JEDILE, In Roman law, an officer who attended 
to the repairs of the temples and other public 
buildings; the repairs and cleanliness of the 
streets; the care of the weights and measures; 
the providing for funerals and games; and to reg- 
ulating the prices of provisions. Ainsworth, Lex.; 
Smith, Lex.; Du Cange. 

zEDILITUM EDICTUM. In the Roman law, the 
lEdilitian Edict. 

An edict providing remedies for frauds in sales, the 
execution of which belonged to the curule Dig. 2 1, 
1. See Cod. 4, 58. That provision by which the buyer of 
a diseased or imperfect slave, horse, or other animal was 
relieved at the expense of the vendor who had sold him as 
sound knowing him to be imperfect. Calvinus, Lex. 

)EFESN. In old English law, the remuneration to 
the proprietor of a domain /for the privilege of 
feeding swine under the oaks and beeches of his 
woods. 

ZEGROTO. Lat. Being sick or indisposed. A 
term used in some of the older reports. "Holt 
cegroto." 11 Mod. 179. 

AEGYLDE. Uncompensated, unpaid for, un- 
avenged. From the participle of exclusion, a, ce, 
or ex, (Goth.,) and gild, payment, requital. Anc. 
Inst. Eng. 

AEL. A Norman French term signifying "grand- 
father." It is also spelled "aieul" and "ayle." 
Kelham. 


76 



AERONAUTIC 


ZEQUIOR EST DISPOSITIO LEGIS QUAM HOM- 
INIS. The disposition of the law is more equita- 
ble than that of man. 8 Coke, 152. 

JEQUITAS. In the civil law, equity, as opposed 
to strictum or su.mmu.rn jus, (q. u.). Otherwise 
called cequum, cequum bonum, cequum et bonum, 
cequum et justum. Calvin. 

Referring to the use of this term, Prof. Gray says 
(Nature and Sources of the Law 290) : "Austin and Maine 
take cequitas as having an analogous meaning to equity ; 
they apply the term to those rules which the prwtors intro- 
duced through the Edict in modification of the jus civile, 
but it seems to be an error to suppose that cequitas had 
this sense in the Roman Law." He quotes Prof. Clark 
(Jurisprudence 367) as doubting "whether cequitas is ever 
clearly used by the Roman jurists to indicate simply a 
department of Law" and expresses the opinion that an 
examination of the authorities more than justifies his 
doubt. iEquitas is opposed to' strictum jus and varies in 
meaning between reasonable modification of the letter and 
substantial justice. It is to be taken as a frame of mind 
in dealing with legal questions and not as a source of law. 

See JEquum et Bonum. 

ZEquitas agit in personam. Equity acts upon the 
person. 4 Bouv.Inst. n. 3733. 

2Equitas est correctio legis generaliter latx, qua 
parte deficit. Equity is the correction of that 
wherein the law, by reason of its generality, is 
deficient. Plowd. 375. 

ZEquitas est correctio qudam legi adhibita, quia 
ab ea abest aliquid propter generalem sine ex- 
ceptione comprehensionem. Equity is a certain 
correction applied to law, because on account of 
its general comprehensiveness, without an excep- 
tion, something is absent from it. Plowd. 467. 

IEquitas est perfecta qudam ratio quajus scrip- 
turn interpretatur et emendat; nulla scriptura 
comprehensa, sed solum in vera ratione consistens. 
Equity is a certain perfect reason, which inter- 
prets and amends the written law, comprehended 
in no writing, but consisting in right reason alone. 
Co.Litt. 24b. 

2-Equitas est quasi aequalitas. Equity is as it were 
equality; equity is a species of equality or equali- 
zation. .Co.Litt. 24. 

ZEquitas ignorantiie opitulatur, oscitanthe non 
item. Equity assists ignorance, but not careless- 
ness. 

Xquitas non facit jus, sed juri auxiliatur. Eq- 
uity does not make law, but assists law. Lofft, 
379. 

ifequitas nunquam contravenit legis. Equity nev- 
er counteracts the laws. 

1-Equitas sequitur legem. Equity follows the law. 
5 Barb.N.Y. 277, 282. 

iEquitas supervacua odit. Equity abhors super- 
fluous things. Lofft, 282. 

IEquitas uxoribus, liberis, creditoribus maxime 
favet. Equity favors wives and children, credi- 
tors most of all. 


ZEQUUM ET BONUM. "The Roman conception 
involved in cequum et bonum' or 'cequitas' is iden- 
tical with what we mean by 'reasonable' or nearly 

so. 

"On the whole, the natural justice or 'reason of the 
thing' which the common law recognizes and applies does 
not appear to differ from the 'law of nature' which the 
Romans identified with jus gentium, and the medieval 
doctors of the civil and common law boldly adopted as 
being divine law revealed through man's natural reason." 
Sir F. Pollock, Expans, of C. L. Ill, citing [1902] 2 Ch. 
66 1 , where jus naturale and cequum et bonum were taken 
to have the same meaning. 

lEquum et bonum est lex legum. What is eq- 
uitable and good is the law of laws. Hob. 224. 

IEQUUS. Lat. Equal; even. A provision in a 
will for the division of the residuary estate ex 
cequus among the legatees means equally or even- 
ly. Archer v. Morris, 47 Atl. 275, 61 N.J.Eq. 152. 

JERA, or ERA. A fixed point of chronological 
time, whence any number of years is counted; 
thus, the Christian era began at the birth of 
Christ, and the Mohammedan era at the flight 
of Mohammed from Mecca to Medina. The deri- 
vation of the word has been much contested. 
Wharton. 

ZERARIUM. Lat. In the Roman law. The treas- 
ury, (fiscus.) Calvin. 

ATRIAL NAVIGATION. See Aeronautics. 

AERODROME. A term originally applied by 
Professor Langley to his flying machine but now 
used in the same sense as "airport" ( q. v .). 

AERONAUT. This term under some statutes 
includes every person who, being in or upon an 
airship or anything attached thereto, undertakes 
to direct its ascent, course, or descent in the air, 
or the ascent, course, or descent in the air of 
anything attached to such airship. 

Under the Uniform Aeronautics Act it includes 
aviator, pilot, baloonist, and every other person 
having any part in the operation of aircraft while 
in flight. See Aeronautics. 

AERONAUTIC ACTIVITY. The term is broad 
enough to cover what is ordinarily incident to an 
airplane trip.. The aeronautic activities of one 
who takes such a trip do not begin or end with 
the actual flight, but include his presence or 
movements in or near to the machine incidental 
to beginning or concluding the trip. Blonski v. 
Bankers' Life Co., 209 Wis. 5, 243 N.W. 410. 

Insured killed when struck by propeller after emerging 
from airplane at end of flight, Day v. Equitable Life Assur. 
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148. To a contrary 
effect: Tierney v. Occidental Life Ins. Co., 89 Cal.App. 779, 
265 P. 400. 

AERONAUTIC EXPEDITION. Traveling as pas- 
senger in airplane operated in regular passenger 
service was engaging in "aeronautic expedition" 
under life policy. Gibbs v. Equitable Life Assur. 
Soc. of U. S., 256 N.Y. 208, 176 N.E. 144. Contra. 
King v. Equitable Life Assur. Soc. of United 
States, 232 Iowa 541, 5 N.W.2d 845, 846, 155 A.L.R. 


77 



AERONAUTIC 


1022. Pleasure trip in airplane over airport on 
pleasant day was not "aeronautic expedition" 
under life policy. Day v. Equitable Life Assur. 
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 149. 

AERONAUTIC OPERATION. Passenger on reg- 
ularly scheduled airplane trip engaged in "aero- 
nautic operation," within life policy. Day v. Eq- 
uitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 
F.2d 147, 148. Did not include casual trip in air- 
plane; "aeronautic operations" signifying more 
than occasional venture. Gits v. New York Life 
Ins. Co., C.C.A.I1 1 ., 32 F.2d 7, 10. Nor a pleasure 
flight in airplane. Day v. Equitable Life Assur. 
Soc. of U. S., C.C.A.Colo., 83 F.2d 147, 148. 

AERONAUTICS. The science, art or practice of 
sailing in the air; aerial navigation; the branch 
of aerostatics which treats of floating in or navi- 
gating the air as in an airship or airplane. Mas- 
sachusetts Protective Ass'n v. Bayersdorfer, C.C.A. 
Ohio, 105 F.2d 595, 597. Operation of aircraft. 
Equitable Life Assur. Soc. of United States v. 
Dyess, 194 Ark. 1023, 109 S.W.2d 1263, 1265. 

It is divided into two branches: aerostation, dealing 
with machines which, like balloons, are lighter than air ; 
and aviation, dealing with artificial flight by machines 
which are heavier than air. Bew v. Travelers' Ins. Co., 95 
N.J.Law, 533, 112 A. 859, 860, 14 A.L.R. 983. 

A passenger in an airplane, whether he takes part in its 
operation or not, "participates in aeronautics" within the 
meaning of an insurance policy. Meredith v. Business 
Men's Acc. Ass'n of America, 213 Mo.App. 688, 252 S.W. 
976, 977. Contra as to a transport airplane passenger who 
could not pilot an airplane, had no knowledge of flying, 
and at time of accident was traveling on private business. 
Gregory v. Mutual Life Ins. Co. of New York, C.C.A. Ark., 
78 F.2d 522, 524. As to an insured, who was a fare-paying 
passenger on a commercial transport plane over an estab- 
lished route while plane was wholly under the control of 
others. Bayersdorfer v. Massachusetts Protective Ass'n, 
D.C.Ohio, 20 F.Supp. 489, 492. A father riding with son as 
guest in airplane purchased by father for son. Day v. 
Equitable Life Assur. Soc. of U. S., C.C.A.Colo., 83 F.2d 
147, 149. And where insured after alighting from a flight, 
in bending over to avoid a wire, was struck by the propel- 
ler of the aeroplane. Tierney v. Occidental Life Ins. Co. of 
California, 89 Cal.App. 779, 265 P. 400, 401. 

See, also, Aircraft; Airship; Airport; Airway; 
Aviation. 

AEROPLANE. See Aircraft; Hydro-Aeroplane; 
Seaplane. 

AEROSTATICS. "Ae"cstatics" is divided into two 
main branches; aer: ” ation dealing, properly, 
with machines, which, like balloons, are lighter 
than air, and aviation dealing with the problem of 
artificial flight by means of flying machines, 
which, like birds, are heavier than air. Swasey v. 
Massachusetts Protective Ass'n, C.C.A.Ariz., 96 
F.2d 265, 266. 

AEROSTATION. See Aerostatics, and Aeronau- 
tics, note. 

ES. Lat. In the Roman law, money, (literally, 
brass;) metallic money in general, including gold. 
Dig. 9, 2, 2, pr.; Dig. 9, 2, 27, 5; Dig. 50, 16, 159. 

ES ALIENUM. A civil law term signifying a 
debt. Literally translated, the money of anoth- 
er; the civil law considered borrowed money as 


the property of another, as distinguished from 
ces suum, one's own money. 

SUUM. One's own money. In the Roman 
law, debt; a debt; that which others owe to us, 
(quod, alii nobis debent.) Dig. 50, 16, 213. 

IESNECIA. In old English law, Esnecy; the 
right or privilege of the eldest born. Spelman; 
Glanv. lib. 7, c. 3; Fleta, lib. 2, c. 66, §1 5, 6. 

IESNECIUS. See Anecius; Aesnecia. 

ESTHETIC. Relating to that which is beautiful 
or in good taste. People v. Wolf, 216 N.Y.S. 741, 
744, 127 Misc. 382. Pertaining to the beautiful. 
Ha y -A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 

5 So. 2d 433, 440. 

ESTIMATIO CAPITIS. Lat. The value of a 
head. 

In Saxon law, the estimation or valuation of the head ; 
the price or value of a man. The price to be paid for tak- 
ing the life of a human being. By the laws of Athelstan, 
the life of every man not excepting that of the king him- 
self, was estimated at a certain price, which was called 
the were , or cestimatio capitis. Crabb, Eng. Law, c. 4. 

ETAS. Lat. In the civil law. Age. 

ESTIMATIO PRIETERITI DELICTI EX POST- 
REMO FACTO NUNQUAM CRESCIT. The weight 
of a past offense is never increased by a subse- 
quent fact. Bacon. 

ETAS INFANTIZE (also written infantili) 
PROXIMA. The age next to infancy; the first 
half of the period of childhood (pueritia,) extend- 
ing from seven years to ten and a half. Inst. 3, 
20, 9; 4 Bl.Comm. 22. See Age. 

'ETAS LEGITIMA. Lawful age; the age of 
twenty-five. Dig. 3, 5, 27, pr.; Id. 26, 2, 32, 2; Id. 
27, 7, 1, pr. 

ETAS PERFECTA. Complete age; full age; 
the age of twenty-five. Dig. 4, 4, 32; Id. 22, 3, 
25, 1. 

ETAS PRIMA. The first age; infancy, (tinfan- 
tio.). Cod. 6, 61, 8, 3. 

'ETAS PUBERTATI PROXIMA. The age next 
to puberty; the last half of the period of child- 
hood (pueritia), extending from ten and a half 
years to fourteen, in which there might or might 
not be criminal responsibility according to natural 
capacity or incapacity. Inst. 3, 20, 9; 4 Bl.Comm. 
22. See Age. 

ETATE PROBANDA. A writ which inquired 
whether the king's tenant holding in chief by 
chivalry was of full age to receive his lands. It 
was directed to the escheater of the county. Now 
disused. 

ETHELING. In Saxon law, a noble; generally 
a prince of the blood. 

AFFAIR. (Fr.). A law suit. 

The term frequently refers to an amour; in- 
trigue; liaison. 


78 



AFFIDARI 


AFFAIRS. An inclusive term, bringing within 
its scope and meaning anything that a person may 
do. Walker v. United States, C.C.A.Mo., 93 F.2d 
383, 391. 

A person's concerns in trade or property; business. 
Bragaw v. Bolles, 51 N.J.Eq. 84, 25 A. 947. That which is 
done or to be clone. Wicks v. City and County of Denver, 
61 Colo. 266, 156 P. 1100, 1103. A corporation's borrowing 
money, and methods of obtaining loans. Cameron v. First 
Nat. Bank, Tex.Civ.App., 194 S.W. 469, 470. Person and 
estate of alleged incompetent. State ex rel. Bevan v. Wil- 
liams, 316 Mo. 665, 291 S.W. 481, 482. General operations 
carried on by an employer. Goes v. Thomas E. Coale Coal 
Co., 142 Pa. Super. 479, 16 A.2d 720, 723. 

AFFECT. To act upon; influence; change; en- 
large or abridge; often used in the sense of acting 
injuriously upon persons and things. Ryan v. 
Carter, 93 U.S. 84, 23 L.Ed. 807; Tyler v. Wells, 2 
Mo.App. 538; Holland v. Dickerson, 41 Iowa 373; 
Meurer v. Hooper, Tex.Civ.App., 271 S.W. 172, 177. 
Does not mean to impair. Harris v. Friend, 24 
N.M. 627, 175 P. 722, 725. To lay hold of or at- 
tack (as a disease does) ; to act, or produce an 
effect upon; to impress or influence (the mind or 
feelings) ; to touch. State v. Hurd, 5 Wash. 2d 
308, 105 P.2d 59, 61, 62. Acted upon, influenced, 
concerned. In re National Lock Co., D.C.I11., 9 F. 
Supp. 432, 433. Implies an indirect relation. 
Chapman v. Home Ice Co., D.C.Tenn., 43 F.Supp. 
424, 428. 

AFFECTED WITH A PUBLIC INTEREST. Af- 
firmatively, phrase means that a business or prop- 
erty must be sun or be so employed as to justify 
the conclusion that it has been devoted to a pub- 
lic use, and its use thereby in effect granted to 
the public. Negatively, it does not mean that a 
business is affected with a public interest merely 
because it is large or because the public are war- 
ranted in having a feeling of concern in respect 
of its maintenance. H. Earl Clack Co. v. Public 
Service Commission of State of Montana, 94 Mont. 
488, 22 P.2d 1056. 

A business given a virtual monopoly in its field or where 
the public adapt their business or conduct to the methods 
used by it. Western Buse Telephone Co. v. Northwestern 
Bell Telephone Co., 188 Minn. 524, 248 N.W. 220, 229. The 
business must affect the prosperity of a large part of file 
members of the body politic. Ex parte Kazas, 22 Cal.App. 
2d 161, 70 P.2d 962, 967. This phrase means something 
more than "quasi public," or "not strictly private," and 
similar phrases employed as a basis for upholding police 
regulations. A business is not affected with a public inter- 
est merely because the public derives benefit, accommoda- 
tion, ease or enjoyment from its existence or operation, 
such as admissions to places of amusement or entertain- 
ment. Tyson & Bro. -United Theatre Ticket Offices v. Ban- 
ton, 273 U.S. 418, 47 S.Ct. 426, 429, 71 L.Ed. 718, 58 A.L.R. 
1236. 

Businesses. Three classes of such businesses : (1) Those 
carried on under the authority of a public grant or privi- 
lege expressly or impliedly imposing an affirmative duty of 
rendering public service demanded by the public, such as 
common carriers and public utilities ; (2) occupations 
regarded as exceptional, the public interest attaching to 
which has been recognized from earliest times and has sur- 
vived the period of arbitrary laws by Parliament or colo- 
nial legislatures for regulating trades and callings, such as 
inns, cabs, and grist mills ; (3) businesses which, though 
not public at their inception, have become such by devot- 
ing their business to a public use, thereby granting the 
public an interest in that use and subjecting themselves to 
public regulation to extent of that interest, although the 
property continues to belong to its private owner, and to 
be entitled to protection accordingly, as public warehouses 


for storage of grain, .banks, and insurance companies. 
Rohrer v. Milk Control Board, 121 Pa. Super. 281, 184 A. 
133, 138. 

AFFECTIO TUA NOIVIEN IMPONIT OPERI TUO. 
Your disposition (or motive, intention) gives 
name (or character) to your work or act. Bract, 
fol. 2b, 101b. 

AFFECTION. The making over, pawning, or 
mortgaging of a thing to assure the payment of 
a sum of money, or the discharge of some other 
duty or service. Crabb, Technol.Dict. 

In a medical sense, an abnormal bodily condition. A 
local "affection" is not a local disease within the 
meaning of an insurance policy, un 1 ess the affection has 
sufficiently developed to have some bearing on the general 
health. Cady v. Fidelity & Casualty Co. of New York, 134 
Wis. 322, 113 N.W. 967, 971, 17 L.R.A.,N.S., 260. 

AFFECTUS. Disposition; intention, impulse or 
affection of the mind. One of the causes for a 
challenge of a juror is propter affectum, on ac- 
count of a suspicion of bias or favor. 3 Bl.Comm. 
363; Co.Litt. 156. 

AFFECTUS PUNITUR LICET NON SEQUATUR 
EFFECTUS. The intention is punished although 
the intended result does not follow. 9 Coke, 55. 

AFFEER. To assess, liquidate, appraise, fix in 
amount. 

Account 

To confirm it on oath in the exchequer. Cowell ; 
Blount; Spelman. 

Amercement 

To establish the amount which one amerced in a court- 
leet should pay. See Amercement. 

AFFEERORS. Persons who, in court-leets, upon 
oath, settle and moderate the fines and amerce- 
ments imposed on those who have committed of- 
fenses arbitrarily punishable, or that have no ex- 
press penalty appointed by statute. They are al- 
so appointed to moderate fines, etc., in courts- 
baron. Cowell. 

AFFERMER. L. Fr. To let to farm. Also to 
make sure, to establish or confirm. Kelham. 

AFFIANCE. To assure by pledge. A plighting 
of troth between man and woman. Littleton, § 

39. 

An agreement by which a man and woman 
promise each other that they will marry together. 
Pothier, Traito du Mar, n. 24. Co.Litt. 34 a. See 
Dig. 23, 1, 1; Code, 5. 1. 4. 

AFFIANT. The person who makes and sub- 
scribes an affidavit. The word is used, in this 
sense, interchangeably with "deponent." But the 
latter term should be reserved as the designation 
of one who makes a deposition. 

AFFIDARE. To swear faith to; to pledge one's 
faith or do fealty by making oath. Cowell. Used 
of the mutual relation arising between landlord 
and tenant; 1 Washb.R.P. 19; 1 Bla.Com. 367; 
Termes de la Ley, Fecdty. Affidavit is of kindred 
meaning. 

AFFIDARI. To be mustered and enrolled for sol- 
diers upon an oath of fidelity. 


79 



AFFIDATIO 


AFFIDATIO. A swearing of the oath of fidelity 
or of fealty to one's lord, under whose protection 
the quasi-vassal has voluntarily come. Brown. 

AFFIDATIO DOMINORUM. An oath taken by 
the lords in parliament. 

AFFIDATUS. One who is not a vassal, but who 
for the sake of protection has connected himself 
with one more powerful. Spelman; 2 Bl.Comm. 
46. 

AFFIDAVIT. A written or printed declaration or 
statement of facts, made voluntarily, and con- 
firmed by the oath or affirmation of the party 
making it, taken before an officer having authori- 
ty to administer such oath. Cox v. Stern, 170 
111. 442, 48 N.E. 906, 62 Am.St.Rep. 385; Hays v. 
Loomis, 84 111. 18. A statement or declaration re- 
duced to writing, and sworn to or affirmed before 
some officer who has authority to administer an 
oath or affirmation. Shelton v. Berry, 19 Tex. 154, 
70 Am. Dec. 326, and In re Breidt, 84 N.J.Eq. 222, 
94 A. 214, 216. 

A written or printed declaration or statement of facts, 
made voluntarily, and confirmed by the oath or affirmation 
of the party making it, taken before an officer having 
authority to administer such oath. June v. School Dist. 
No. 11, Southfield Tp., 283 Mich. 533, 278 N.W. 676, 677, 116 
A.L.R. 581. Any voluntary ex parte statement reduced to 
writing and sworn to or affirmed before some person 
legally authorized to administer oath or affirmation, made 
without notice to adverse party and without opportunity 
to cross-examine. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 
434, 435, 436. The word sometimes includes "depositions." 
U. S. v. Kaplan, D.C.Ga., 286 F. 963, 970. 

"Affidavits" are of two kinds; those which serve as evi- 
dence to advise the court in the decision of some prelimi- 
nary issue or determination of some substantial right, and 
those which merely serve to invoke the judicial power. 
Worthen v. State, 189 Ala. 395, 66 So. 686, 688. 

AFFIDAVIT OF DEFENSE. An affidavit stating 
that the defendant has a good defense to the 
plaintiffs action on the merits. The statements 
required in such an affidavit vary considerably in 
the different states where they are required. 
Called also an affidavit of merits (q. V.), as in 
Massachusetts. 

AFFIDAVIT OF DEMAND. "Affidavit of de- 
mand" filed under Code section to obtain judg- 
ment for want of affidavit of defense held not 
equivalent of "declaration." Penn Central Light 
& Power Co. v. Central Eastern Power Co., 6 W. 
W.Harr. 74, 171 A. 332. 

AFFIDAVIT OF MERITS. One setting forth that 
the defendant has a meritorious defense (substan- 
tial and not technical) and stating the facts con- 
stituting the same. Palmer v. Rogers, 70 Iowa 
381, 30 N.W. 645. Represents that, on the sub- 
stantial facts of the case, justice is with the af- 
fiant. Wendel v. Wendel, 58 S.D. 438, 236 N.W. 
468, 469. 

AFFIDAVIT OF SERVICE. An affidavit intend- 
ed to certify the service of a writ, notice, or other 
document. 

AFFIDAVIT TO HOLD TO BAIL. An affidavit 
required in many cases before the defendant in 
a civil action may be arrested. Such an affidavit 


must contain a statement, clearly and certainly 
expressed, by some one acquainted with the fact, 
of an indebtedness from the defendant to the 
plaintiff, and must show a distinct cause of action; 
1 Chit.Pl. 165. 

AFFILARE. L. Lat. To put on record; to file 
or affile. Affiletur, let it be filed. 8 Coke, 160. 
De recordo affLlatum, affiled of record. 2 Ld. 
Raym. 1476. 

AFFILE. A term employed in old practice, signi- 
fying to put on file. 2 Maule & S. 202. In modern 
usage it is contracted to file. 

AFFILIATE. Signifies a condition of being unit- 
ed, being in close connection, allied, or attached as 
a member or branch. Johanson v. Riverside 
County Select Groves, 4 Cal.App.2d 114, 40 P.2d 
530, 534. 

"Affiliate with" is defined as to receive on friendly 
terms; to associate with; to be intimate with; to sympa- 
thize with; to consort with; and to connect or associate 
one's self with. Wolck v. Weedin, C.C.A.Wash., 58 F.2d 
928, 930. But "affiliated" does not bear construction that 
one of affiliated organizations is in all particulars identical 
with or covered by parent organization with which it may 
be said to be affiliated. People v. Horiuchi, 1 14 Cal.App. 
415, 300 P. 457, 460. 

AFFILIATION. Imports less than membership 
in an organization, but more than sympathy, and 
a working alliance to bring to fruition the pro- 
scribed program of a proscribed organization, as 
distinguished from mere co-operation with a pro- 
scribed organization in lawful activities, is es- 
sential. Bridges v. Wixon, Cal., 326 U.S. 135, 65 
S.Ct. 1443, 1447, 89 L.Ed. 2103. 

It includes an element of dependability upon which the 
organization can rely which, though not equivalent to 
membership duty, rests upon course of conduct that could 
not be abruptly ended without giving at least reasonable 
cause for charge of breach of good faith. U. S. ex rel. 
Kettunen v. Reimer, C.C.A.N.Y., 79 F.2d 315, 317. 

The act of imputing or determining the paterni- 
ty of a bastard child, and the obligation to main- 
tain it. 

Corporations 

Actual control of corporations by same interests 
is insufficient; legally enforceable control of stock 
of corporations by same interests being required. 
Island Petroleum Co. v. Commissioner of Internal 
Revenue, C.C.A., 57 F.2d 992, 994. Commences 
with acquisition of corporation from owners out- 
side of group and ends with disposal of all prop- 
erties or stock to those outside group. Hernandez 
v. Charles Ilfeld Co., C.C.A.N.M., 66 F.2d 236, 238. 

Ecclesiastical Law 

A condition which prevented the superior from 
removing the person affiliated to another convent. 
Guyot, Repert. 

French Law 

A species of adoption which exists by custom in 
some parts of France. The person affiliated suc- 
ceeded equally with other heirs to the property ac- 
quired by the deceased to whom he had been af- 
filiated, but not to that which he inherited. 


80 



AFFIRMATION 


AFFINAGE. A refining of metals. Blount. 

AFFINES. In the civil law, connections by mar- 
riage, whether of the persons or their relatives. 
Calvinus, Lex. 

Neighbors, who own or occupy adjoining 
lands. Dig. 10, 1, 12. 

From this word we have affinity, denoting relationship 
by marriage; 1 Bla.Com. 434. The singular, affinis, is 
used in a variety of related significations — a boundary; Du 
Cange; a partaker or sharer, affinis culpce (an aider or 
one who has knowledge of a crime) ; Calvinus, Lex. 

AFFINIS MEI AFFINIS NON EST MIHI AF- 
FINIS. One who is related by marriage to a per- 
son related to me by marriage has no affinity to 
me. Shelf.Mar. 8s Div. 174. 

AFFINITAS. Lat. In the civil law, affinity; re- 
lationship by marriage. Inst. 1, 10, 6. 

AFFINITAS AFFINITATIS. Remote relation- 
ship by marriage. That connection between par- 
ties arising from marriage which is neither con- 
sanguinity nor affinity. Davidson v. Whitehill, 87 
Vt. 499, 89 A. 1081, 1085. This term signifies the 
connection between the kinsmen of the two per- 
sons married, as, for example, the husband's 
brother and the wife's sister. Erskine, Inst. 1. 6. 8. 

AFFINITY. A close agreement; relation; spir- 
itual relation or attraction held to exist between 
certain persons. State ex inf. Norman v. Ellis, 
325 Mo. 154, 28 S.W.2d 363, 367. Relation which, 
one spouse because of marriage has to blood rela- 
tives of the other. State v. Hooper, 140 Kan. 481, 
37 P.2d 52. 

Degrees of relationship by affinity are computed as are 
degrees of relationship by consanguinity. The doctrine of 
affinity grew out of the canonical maxim that marriage 
makes husband and wife one. The husband has the same 
relation, by affinity, to his wife's blood relatives as she has 
to them by consanguinity and vice versa. State v. Hooper, 
140 Kan. 481, 37 P.2d 52. 

Affinity is distinguished into three kinds : (1) Direct, or 
that subsisting between the husband and his wife's rela- 
tions by blood, or between the wife and the husband's rela- 
tions by blood; (2) secondary, or that which subsists 
between the husband and his wife's relations by marriage ; 
(3) collateral, or that which subsists between the husband 
and the relations of his wife's relations. Wharton. 

In a larger sense, consanguinity or kindred. 
Co. Lift. 157a. 

Quasi Affinity 

In the civil law, the affinity which exists be- 
tween two persons, one of whom has been be- 
trothed to a kinsman of the other, but who have 
never been married. 

AFFIRM. To ratify, make firm, confirm, estab- 
lish, reassert. Cowell; Ashby v. Peters, 128 Neb. 
338, 258 N.W. 639, 644, 99 A.L.R. 843. 

In the practice of appellate courts, to affirm a judgment, 
decree, or order, is to declare that it is valid and right, 
and must stand as rendered below; to ratify and reassert 
it; to concur in its correctness and confirm its efficacy. 
Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726, 
727. 

Contracts 

Ratify and accept voidable contract. Cf. Adopt. 

Black's Law Dictionary Revised 4th Ed. -6 


Pleading 

To allege or aver a matter of fact; to 'state it 
affirmatively; the opposite of 'deny or traverse. 

Practice 

To make affirmation; to make a solemn and 
formal declaration or asseveration that an affi- 
davit is true, that the witness will tell the truth, 
etc., this being substituted for an oath in certain 
cases. Also, to give testimony on affirmation. 

AFFIRMANCE. In practice. The confirming, or 
ratifying of a former law, or judgment. Cowell; 
Blount. 

The confirmation and ratification by an appel- 
late court of a judgment, order, or decree of a 
lower court brought before it for review. See Af- 
firm, note. 

The ratification or confirmation of a voidable 
contract or act by the party who is to be bound 
thereby. 

The term is in accuracy to be distinguished from ratifi- 
cation, which is a recognition of the validity or binding 
force as against the party ratifying, of some act performed 
by another person; and from confirmation, which would 
seem to apply more properly to cases where a doubtful 
authority has been exercised by another in behalf of the 
person ratifying; but these distinctions are not generally 
observed with much care. 

AFFIRMANCE DAY GENERAL. In the English 
court of exchequer, a day appointed by the judges 
of the common pleas, and barons of the exche- 
quer, to be held a few days after the beginning of 
every term for the general affirmance or reversal 
of judgments. 2 Tidd, Pr. 1091. 

AFFIRMANT. A person who testifies on affirma- 
tion, or who affirms instead of taking an oath. 
See Affirmation. Used in affidavits and deposi- 
tions which are affirmed, instead of sworn to in 
place of the word "deponent." 

AFFIRMANTI, NON NEGANTI INCUMBIT 
PROBATIO. The [burden of] proof lies upon 
him who affirms, not upon one who denies. Steph. 
PI. 84. 

AFFIRMANTIS EST PROBARE. He who affirms 
must prove. Porter v. Stevens, 9 Cush., Mass., 
535. 

AFFIRMATION. In practice, a solemn and for- 
mal declaration or asseveration that an affidavit 
is true, that the witness will tell the truth, etc., 
this being substituted for an oath in certain cases. 

A solemn religious asseveration in the nature of 
an oath. 1 Greenl.Ev. § 371. 

Quakers, as a class, and other persons who have consci- 
entious scruples against taking an oath, are allowed to 
make affirmation in any mode which they may declare to 
be binding upon their consciences, in confirmation of the 
truth of testimony which they are about to give. 1 Atk. 
21, 46; Cowp. 340, 389; 1 Leach Cr.Cas. 64; 1 Ry. & 
M. 77. 

AFFIRMATION OF FACT. A statement concern- 
ing a subject-matter of a transaction which might 
otherwise be only an expression of opinion but 
which is affirmed as an existing fact material to 

81 



AFFIRMATIO UNIUS 


t lie transaction, and reasonably induces the other 
party to consider and rely upon it, as a fact. 
Stone v. McCarty, 64 Cal.App. 158, 220 P. 690, 694. 

AFFIRMATIO UNIUS EXCLUSIO EST ALTERI- 
CS. The affirmance of one thing is the exclusion 
of the other. State v. Evans, 214 La. 472, 38 So. 2d 
140, 147. 

AFFIRMATIVE. That which declares positively; 
that which avers a fact to be true; that which 
establishes; the opposite of negative. 

The party who, upon the allegations of pleadings joining 
issue, is under the obligation of making proof, in the first 
instance, of matters alleged, is said to hold the affirmative, 
or, in other words, to sustain the burden of proof. Abbott. 

As to affirmative "Damages," "Plea," "Proof," 
"Warranty," see those titles. 

AFFIRMATIVE ACTION. The "a ffi rmative ac- 
tion" which the National Labor Relations Board ' 
is authorized to take to effectuate the policies of 
the National Labor Relations Act is action to 
make effective the redress of rights conferred 
upon employees by the act. National Labor Rela- 
tions Board v. National Casket Co., C.C.A.2, 107 
F.2d 992,998. 

It is broad, but is not unlimited, is remedial not puni- 
tive, and is to be exercised in aid of the Board's authority 
to restrain violations and as a means of removing or avoid- 
ing the consequences of violations. National Labor Rela- 
tions Board v. Fansteel Metallurgical Corporation, 306 U.S. 
240, 59 S.Ct. 490, 497, 83 L. Ed. 627, 123 A.L.R. 599. 

It is not disciplinary. National Labor Relations Board 
v. Leviton Mfg. Co., C.C.A.2, 111 F.2d 619, 621. 

AFFIRMATIVE AUTHORIZATION. Something 
more than authority by mere implication. White, 
Gratwick & Mitchell v. Empire Engineering Co., 
125 Misc. 47, 210 N.Y.S. 563, 572. 

AFFIRMATIVE CHARGE. The general "affirma- 
tive charge" is an instruction to the jury that, 
whatever the evidence may be, defendant cannot 
be convicted under the count in the indictment to 
which the charge is directed. Coker v. State, 18 
Ala.App. 550, 93 So. 384, 386. 

AFFIRMATIVE DEFENSE. In code pleading. 
New matter constituting a defense; new matter 
which, assuming the complaint to be true, con- 
stitutes a defense to it. Carter v. Eighth Ward 
Bank, 33 Misc. 128, 67 N.Y.S. 300. 

AFFIRMATIVE EASEMENT. An "affirmative 
easement" is one which gives to the owner of the 
dominant tenement the right to use the servient 
tenement, or to do some act thereon which would 
otherwise be unlawful. Clements v. Taylor, Tex. 
Civ.App., 184 S.W.2d 485, 487. 

AFFIRMATIVE PREGNANT. In pleading, an af- 
firmative allegation implying some negative in 
favor of the adverse party. Fields v. State, 134 
Ind. 46, 32 N.E. 780. 

AFFIRMATIVE PROOF. Such evidence of the 
truth of matters asserted as tends to establish 
them, regardless of character of evidence offered. 
Glass v. Newport Clothing Co., 1 10 Vt. 368, 8 A. 2d 
651, 654. 


AFFIRMATIVE RELIEF. Relief, benefit, or com- 
pensation which may be due and granted to de- 
fendant. Garner v. Hannah, 6 Duer, N.Y., 262. 
Relief for which defendant might maintain an ac- 
tion independently of plaintiffs claim and on 
which he might proceed to recovery, although 
plaintiff abandoned his cause of action or failed 
to establish it. Southwestern Surety Ins. Co. v. 
Walser, 77 Okl. 240, 188 P. 335, 336. 

AFFIRMATIVE STATUTE. A statute couched in 
affirmative or mandatory terms. 1 Bl.Comm. 142. 

One which directs the doing of an act, or declares what 
shall be done ; as a negative statute is one which prohibits 
a thing from being done, or declares what shall not be 
done. Blacks tonp describes affirmative acts of parliament 
as those "wherein justice is directed to be done according 
to the law of the land." 1 Bl.Comm. 142. 

AFFIRMATIVE WARRANTY. Affirms existence 
of a fact at time policy is entered into, while 
promissory warranty requires that something be 
done or not done after policy has taken effect. 
Sentinel Life Ins. Co. v. Blackmer, C.C.A.Colo., 
77 F.2d 347, 350. 

AFFIX. Fix or fasten in any way, to attach 
physically. Penn v. Dyba, 115 Cal.App. 67, 1 P.2d 
461, 464. To attach to, inscribe, or impress upon, 
as a signature, a seal, a trade-mark. Pen. Code 
N.Y. § 367. To attach, add to, or fasten upon, per- 
manently, as in the case of fixtures annexed to 
real estate. 

A thing is deemed to be affixed to land when it is 
attached to it by the roots; as in the case of trees, vines, 
or shrubs ; or imbedded in it, as in the case of walls ; or 
permanently resting upon it, as in the case of buildings ; 
or permanently attached to what is thus permanent, as by 
means of cement, plaster, nails, bolts, or screws. Miller 
v. Waddingham, 3 Cal. Unrep. Cas. 375, 25 Pac. 688, 11 
L.R.A. 510; Tolle v. Vandenberg, 44 Okl. 780, 146 P. 212, 
213. 

AFFIXING. Securely attached. Mechanics' Nat. 
Bank of Trenton v. Newman, 137 Misc. 587, 244 
N.Y.S. 529, 531. 

AFFIXUS. In the civil law, affixed, fixed, or fas- 
tened to. 

AFFLICTION. A distress of mind or body; that 
which causes continuing anguish or suffering. 

AFFORARE. To set a price or value on a thing. 
Blount. 

AFFORATUS. Appraised or valued, as things 
vendible in a market. Blount. 

AFFORCE. To add to; to increase; to strength- 
en; to add force to. 

AFFORCE THE ASSIZE. In old English practice, 
a method of securing a verdict, where the jury 
disagreed, either by confining them without meat 
and drink, or, more anciently, by adding other 
jurors to the panel, to a limited extent, until 
twelve could be found who were unanimous. 
Bract, fol. 185b, 292a; Fleta, lib. 4, c. 9, § 2; 2 
Reeve, Hist. Eng. Law, 267. 


82 



AFTER-BORN 


AFFORCIAMENTUM. In old English law, a 
fortress or stronghold, or other fortification. Cow- 
ell. 

The calling of a court upon a solemn or extra- 
ordinary occasion. Id. 

AFFOREST. To convert land into a forest in the 
legal sense of the word. 

AFFORESTATION. The turning of a part of a 
country into forest or woodland or subjecting it 
to forest law, q. v. 

AFFOUAGE. In French law, the right of the in- 
habitants of a commune or section of a commune 
to take from the forest the fire-wood which is 
necessary for their use. Duverger. 

AFFRANCHIR. L. Fr. To set free. Kelham. 

AFFRANCHISE. To liberate; to make free. 

AFFRAY. The fighting of two or more persons 
in some public place to the terror of the people. 
Wallace v. Commonwealth, 207 Ky. 122, 268 S.W. 
809, 813. 

Where two or more persons voluntarily or by agreement 
engage in any fight, or use any blows or violence towards 
each other in an angry or quarrelsome manner, in any 
public place to the disturbance of others. 

Words are insufficient, but if one person, by such abusive 
language toward another as is calculated and intended to 
bring on a fight, induces the other to strike him, both are 
guilty of "affray." State v. Maney, 194 N.C. 34, 138 S.E. 
441, 442. 

It differs from a riot in not being premeditated. Hawk. 
P.C. bk. 1, c. 65, § 3; 4 Bl.Comm. 146; 1 Russ. Crimes, 271. 

AFFRECTAMENTUM. Affreightment; a con- 
tract for the hire of a vessel. From the Fr. fret, 
which, according to Cowell, meant tons or ton- 
nage. Affreightamentum was sometimes used. 
Du Cange. 

AFFREIGHTMENT. A contract of affreightment 
is a contract with a ship-owner to hire his ship, 
or part of it, for the carriage of goods. The Fred 
Smartley, Jr., C.C.A.Va., 100 F.2d 971, 973. 

Such a contract generally takes the form either of a 
charter-party or of a bill of lading. Bramble v. Culmer, 78 
Fed. 501, 24 C.C.A. 182. A contract to transport goods con- 
stitutes a contract of "affreightment," although there is 
towage service connected therewith. The Independent, 
D.C.La., 37 F.Supp. 106, 111. 

In French law, freighting and affreighting are distin- 
guished. The owner of a ship freights it, (le frete;) he 
is called the freighter, (freteur ;) he is the letter or lessor, 
(locateur, locator.) The merchant affreights (affrete) the 
ship, and is called the affreighter, (affreteur;) he is the 
hirer, (locataire, conductor.) Emerig. Tr. des Ass. c. 11, 
§3. 

AFFRETEMENT. Fr. In French law, the hiring 
of a vessel; affreightment (q. v.). Called also 
nolissement. Ord.Mar. liv. 1, tit. 2, art. 2; Id. 
liv. 3, tit. 1, art. 1. 

AFFRI. In old English law, plow cattle, bullocks 
or plow horses. Affri, or afri carucce; beasts of 
the plow. Spelman. 

AFFRONT. An insult or indignity; assault, in- 
sololence. 


AFORESAID. Before, or already said, mentioned, 
or recited; premised. Plowd. 67. Alabama Great 
Southern R. Co. v. Smith, 191 Ala. 643, 68 So. 56, 
57. Foresaid is used in Scotch law. 

Although the words "preceding" and "aforesaid" gen- 
erally mean next before, and "following" means next 
after, yet a different signification will be given to them if 
required by the context and the facts of the case. Simpson 
v. Robert, 35 Ga. 180. 

AFORETHOUGHT. In criminal law, deliberate; 
planned; premeditated; prepense. State v. Fiske, 
63 Conn. 388, 28 A. 572. See Malice Aforethought; 
Premeditation; 4 Bla.Com. 199; Respublica v. 
Mulatto Bob, 4 Dali., Pa., 146, 1 L.Ed. 776; U. S. 
v. Cornell, 2 Mas. 91, Fed.Cas.No. 14,868. 

"Aforethought" as used in the law of murder means 
thought of beforehand and for any length of time, however 
short, before the doing of the act, and is synonymous with 
premeditation. State v. Smith, 26 N.M. 482, 194 P. 869, 
872. 

AFRICAN DESCENT. Persons of African nativi- 
ty or of "African descent" within the meaning of 
the Naturalization Act, as amended by Act July 
14, 1870 (8 U.S.C.A. § 703 note), are members of 
the negro races of Africa or their descendants by 
intermixture with races constituting free white 
persons, the negro races referred to being those 
from which the emancipated slaves in the United 
States descend. Ex parte Shahid, D.C.S.C., 205 
F. 812,815. 

AFTER. Later, succeeding, subsequent to, in- 
ferior in point of time or of priority or prefer- 
ence. 

Subsequent in time to. Cheney v. National Surety Cor- 
poration, 256 App.Div. 1041, 10 N.Y.S.2d 706. At. Hyman 
Bros. Box & Label Co. v. Industrial Accident Commission, 
180 Cal. 423, 181 P. 784, 786. On and after New York Trust 
Co. v. Portland Ry. Co., 197 App.Div. 422, 189 N.Y.S. 346, 
348. "At the end of' or "as soon as," and in computation 
of time, is generally understood in sense of excluding 
day of date mentioned. Taylor v. National Life & Acci- 
dent Ins. Co., Tex.Civ.App., 63 S.W.2d 1082, 1083. But the 
words "after the filing" as used in sections 63 and 68 of the 
Bankruptcy Act (11 U.S.C.A. §§ 103, 108) do not mean the 
day after that of filing, but refer to the very instant of fil- 
ing if ascertainable. In re Ledbetter, D.C.Ga., 267 F. 893, 
896. A note payable generally "after date," is payable on 
demand. Love v. Perry, 19 Ga.App. 86, 90 S.E. 978, 979. 

AFTER-ACQUIRED. Acquired after a particular 
date or event. Thus, a judgment is a lien on af t- 
er-acquired realty, i. e., land acquired by the debt- 
or after entry of the judgment. Hughes v. 
Hughes, 152 Pa. 590, 26 A. 101. 

AFTER ACQUIRED TITLE. Doctrine under 
which title acquired by grantor who previously 
attempted to convey title to land which he did 
not in fact own, inures automatically to benefit 
of prior grantees. Perkins v. White, Miss., 43 
So. 2d 897, 899; Morris v. Futischa, 194 Okl. 224, 
148 P.2d 986, 987. 

AFTER-BORN CHILD. A statute making a will 
void as to after-born children means physical 
birth, and is not applicable to a child legitimated 
by the marriage of its parents. Appeal of Mc- 
Culloch, 11.3 Pa. 247, 6 A. 253. See En Ventre Sa 
Mere; Posthumous Child. 


83 



AFTER-DISCOVERED 


AFTER-DISCOVERED. Discovered or made 
known after a particular date or event. 

AFTER-DISCOVERED EVIDENCE. See Evi- 
dence. 

AFTER SIGHT. This term as used in a bill pay- 
able so many days after sight, means after legal 
sight; that is, after legal presentment for ac- 
ceptance. The mere fact of having seen the bill 
or known of its existence does not constitute le- 
gal "sight." Mitchell v. Degrand, 17 Fed.Cas. 
494. 

AFTERMATH. A second crop of grass mown in 
the same season; also the right to take such sec- 
ond crop. See 1 Chit. Gen. Pr. 181. 

"Aftermath" as used in the manufacture of window glass 
means the colder glass remaining on and in molten bath 
after drawing of glass cylinder. Okmulgee Window Glass 
Co. v. Window Glass Mach. Co., C.C.A.Okl., 265 F. 626, 
630. 

AFTERNOON. May mean the whole time from 
noon to midnight, or it may mean the earlier part 
of that time as distinguished from evening. 
Clevenger v. Carl B. King Drilling Co., Tex. Civ. 
App., 62 S.W.2d 1001. But ordinarily means that 
part of day between noon and evening. Buttrick 
v. Woman's Hospital Aid Ass'n, 87 N.H. 194, 177 
A. 416, 418. 

AFTERTHOUGHT. A thought composed after 
the event and with deliberation. A devise to es- 
cape difficulty. 

AFTERWARD, AFTERWARDS. Subsequent in 
point of time; synonymous with "thereafter," 
Lamoutte v. Title Guaranty & Surety Co., 165 App. 
Div. 573, 151 N.Y.S. 148, 154, or with "then," 
Boyce v. Mosely, 102 S.C. 361, 86 S.E. 771, 772. 

AGAINST. Adverse to; contrary, Cram v. Meag- 
her, 1 13 Vt. 463, 35 A. 2d 855, In re Dean's Estate, 
350 Mo. 494, 166 S.W.2d 529, 533. Signifies discord 
or conflict; opposed to; without the consent of; in 
contact with. Palmer v. Superior Mfg. Co., D.C. 
N.Y., 203 F. 1003, 1005, Clemens v. Perry, Tex.Civ. 
App., 29 S.W.2d 529, 533. Sometimes meaning 
"upon," which is almost, if not altogether, synon- 
ymous with word "on." Northern Pac. Ry. Co. 
v. Gas Development Co., 103 Mont. 214, 62 P.2d 
204, 205. Denoting manifestation of raped wo- 
man's utmost reluctance and greatest resistance. 
State v. Egner, 317 Mo. 457, 296 S.W. 145, 146. 

AGAINST THE EVIDENCE. Means "against the 
weight of the evidence." Cram v. Meagher, 1 13 
Vt. 463, 35 A.2d 855. 

AGAINST THE FORM OF THE STATUTE. Tech- 
nical words which must be used in framing an in- 
dictment for a breach of the statute prohibiting 
the act complained of. The Latin phrase is con- 
tra forman statuti, q. v. State v. Murphy, 15 R.I. 
543, 10 A. 585. 

AGAINST THE PEACE. A technical phrase used 
in alleging a breach of the peace. See Contra 
Pacem. State v. Tibbetts, 86 Me. 189, 29 A. 979. 


AGAINST THE WEIGHT OF THE EVIDENCE, 
"Contrary to the evidence". Russell v. Pilger, 
1 13 Vt. 537, 37A.2d403, 411. 

AGAINST THE WILL. Technical words which 
must be used in framing an indictment for rob- 
bery from the person, rape and some other of- 
fenses. Whittaker v. State, 50 Wis. 521, 7 N.W. 
431, 36 Am.St.Rep. 856. 

AGALMA. An impression or image of anything 
on a seal. Cowell. 

AGARD. L. Fr. An award. Nul fait agard; no 
award made. 

AGARDER. L. Fr. To award, adjudge, or de- 
termine; to sentence, or condemn. 

AGE. The length of time during which a person 
has lived; the time at which one attains full per- 
sonal rights and capacities. In law the term sig- 
nifies those periods in the lives of persons of both 
sexes which enable them to do certain acts which, 
before they had arrived at those periods, they 
were prohibited from doing. 2 C.J.S., p. 1013. 

As used in particular statutes, the term implies 
disability and, by definition, has been applied to 
all minors under a certain age and to others dis- 
abled by old age. Hampton v. Ewert, C.C.A.Okl., 
22 F.2d 81, 87. 

Age and schooling certificate. Collings -Taylor Co. v. 
American Fidelity Co., 96 Ohio St. 123, 117 N.E. 158. 

Age fixed by law. Johnson v. Travelers' Ins. Co., 147 
Or. 345, 32 P.2d 587. 

Age of consent. Ex parte Hutchens, 296 Mo. 331, 246 
S.W. 186, 189. 

Age of legal consent. Johnson v. Alexander, 39 Cal. App. 
177, 178 P. 297; Fishery. Bernard, 65 Vt. 663, 27 A. 316. 

Age of majority. Gates v. Shaffer, 72 Wash. 451, 130 P. 
896. 

Age of maturity. Commercial Bank & Trust Co. v. 
Noble, 112 So. 691, 146 Miss. 552. 

Age of twenty-one years. Vanderbilt v. Eidman, 196 U.S. 
480, 25 S.Ct. 331, 49 L. Ed. 563. 

Legal Age. See Legal Age. 

Legal school age. Inhabitants of Needham v. 
Wellesley, 139 Mass. 372, 31 N.E. 732. 

AGE, Awe, Aive. L. Fr. Water. Kelham. 

AGE PRAYER. A suggestion of nonage, made by 
an infant party to a real action, with a prayer 
that the proceedings may be deferred until his 
full age. It is now abolished. St. 1 1 Geo. IV.; 1 
Wm. IV. c. 37, § 10; 1 Lil.Reg. 54; 3 Bl.Comm. 300. 

AGENCY. Includes every relation in which one 
person acts for or represents another by latter's 
authority, Saums v. Parfet, 270 Mich. 165, 258 
N.W. 235, where one person acts for another, ei- 
ther in the relationship of principal and agent, 
master and servant, or employer or proprietor 
and independent contractor, Gorton v. Doty, 57 
Idaho 792, 69 P.2d 136, 139. 

Properly speaking, agency relates to commer- 
cial or business transactions. Humble Oil & Re- 
fining Co. v. Bell, Tex. Civ. App., 172 S.W.2d 800, 


84 



AGENT 


803, and frequently is used in connection with an 
arrangement which does not: in law amount to 
an agency, as where the essence of an arrange- 
ment is bailment or sale, as in the case of a sale 
agency exclusive in certain territory. State Com- 
pensation Ins. Fund v. Industrial Accident Com- 
mission, 216 Cal. 351, 14 P.2d 306, 310. 

It also designates a place at which business of 
company or individual is transacted by an agent. 
Johnson Freight Lines v. Davis, 170 Tenn. 177, 93 
S.W.2d 637, 639. 

The relation created by express or implied contract or 
by law, whereby one party delegates the transaction of 
some lawful business with more or less discretionary power 
to another, who undertakes to manage the affair and ren- 
der to him an account thereof. State ex rel. Cities Service 
Gas Co. v. Public Service Commission, 337 Mo. 809, 85 
S.W.2d 890, 894. Or where one person confides the man- 
agement of some affair, to be transacted on his account, 
to other party. 1 Liverm. Prin. & Ag. 2. Or one party 
is authorized to do certain acts for, or in relation to the 
rights or property of the other. But means more than 
tacit permission, and involves request, instruction, or com- 
mand. Klee v. U. S., C.C.A.Wash., 53 F.2d 58, 61. Being 
the consensual relation existing between two persons, by 
virtue of which one is subject to other's control. Tarver, 
Steele & Co. v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d 
156, 159. 

Actual agency. Exists where the agent is really em- 
ployed by the principal. Weidenaar v. N. Y. Life Ins. Co., 
36 Mont. 592, 94 P. 1, 6. 

Agency by estoppel. One created by operation of law 
and established by proof of such acts of the principal as 
reasonably lead to the conclusion of its existence. Sigel- 
Campion Live Stock Commission Co. v. Ardohain, 71 Colo. 
410. 207 P. 82, 83. Arises where principal, by negligence 
in failing to supervise agent’s affairs, allows agent to exer- 
cise powers not granted to him, thus justifying others in 
believing agent possesses requisite authority. Reifsnyder 
v. Dougherty, 301 Pa. 328, 152 A. 98, 100. Though princi- 
pal have no notice of agent's conduct, Dispatch Printing 
Co. v. National Bank of Commerce, 109 Minn. 440, 124 N.W. 
236, 50 L.R.A.,N.S., 74. 

Agency of necessity. A term sometimes applied to the 
kind of implied agency which enables a wife to procure 
what is reasonably necessary for her maintenance and sup- 
port on her husband's credit and at his expense, when he 
fails to make proper provision for her necessities. Bost- 
wick v. Brower, 49 N.Y.S. 1046, 22 Misc. 709. 

Deed, of agency . A revocable and voluntary trust for 
payment of debts. Wharton. 

Exclusive agency. Defined as an agreement by owner 
that during life of contract he will not sell property to a 
purchaser procured by another agent, which agreement 
does not preclude owner himself from selling to a pur- 
chaser of his own procuring, while a contract giving a 
broker "exclusive sale" is more than such exclusive agency, 
and is an agreement by the owner that he will not sell the 
property during the life of the contract to any purchaser 
not procured by the broker in question. Harris v. McPher- 
son, 97 Conn. 164, 115 A. 723, 724, 24 A.L.R. 1530; Harris 
& White v. Stone, 137 Ark. 23, 207 S.W. 443, 444. 

General agency. That which exists when there is a dele- 
gation to do all acts connected with a particular trade, 
business or employment. Hinkson v. Kansas City Life Ins. 
Co., 93 Or. 473, 183 P. 24, 29. It implies authority on the 
part of the agent to act without restriction or qualification 
in all matters relating to the business of his principal. 
Schwartz v. Maryland Casualty Co., 82 N.H. 177, 131 A. 
352, 353. 

Implied agency. One created by act of parties and 
deduced from proof of other facts. Sigel-Campion Live 
Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82, 
83. It is an actual agency, proved by deductions or infer- 
ences from other facts, and third party need have no 
knowledge of the principal's acts, nor have relied on them. 
Kentucky-Pennsylvania Oil & Gas Corporation v. Clark, 247 
Ky. 438, 57 S.W.2d 65. 


Ostensible agency. One which exists where the principal 
intentionally or by want of ordinary care causes a third 
person to believe another to be his agent who is not really 
employed by him. Weidenaar v. N. Y. Life Ins. Co., 36 
Mont. 592, 94 P. 1, 6. See, also, Agency by Estoppel. 

AGENCY COUPLED WITH INTEREST. Interest 
in continued existence of power' or authority to 
act with reference to business, where secured by 
contract and based on consideration moving from 
agent to principal looking to exercise of power as 
means of reimbursement, creates "agency coupled 
with an interest." Bowling v. National Convoy & 
Trucking Co., 101 Fla. 634, 135 So. 541, 544. 
Agent must have an interest or estate in the 
thing to be disposed of or managed under the 
power. Eduardo Fernandez Y Compania v. Lon- 
gino & Collins, 199 La. 343, 6 So.2d 137, 142, 143. 

AGENCY RELATIONSHIP. An employment for 
purpose of representation in establishing legal re- 
lations between principal and third persons. Bla- 
bon v. Hay, 269 Mass. 401, 169 N.E. 268, 271. 

AGENDA. Memoranda of things to be done, as 
items of business or discussion to be brought up 
at a meeting; a program consisting of such items. 
Webster. Baton Rouge Bldg. Trades Council v. 
T. L. James & Co., 201 La. 749, 10 So.2d 606, 619. 

AGENESIA. In medical jurisprudence, impoten- 
tia generandi; sexual impotence; incapacity for 
reproduction, existing in either sex, and whether 
arising from structural or other causes. 

AGENFRIDA. Sax. The true master or owner 
of a thing. Spelman. 

AGENHINA. In Saxon law, a guest at an inn, 
who, having stayed 'there for three nights, was 
then accounted one of the family. Cowell. 

AGENS. Lat. An agent, a conductor, or manag- 
er of affairs. Distinguished from factor, a work- 
man. A plaintiff. Fleta, lib. 4, c. 15, § 8. 

AGENT. A person authorized by another to act 
for him, one intrusted with another's business. 
Downs v. Delco-Light Co., 175 La. 242, 143 So. 227. 
One who represents and acts for another under 
the contract or relation of agency, q. v. Fowler 
v. Cobb, Mo.App., 232 S.W. 1084. A business rep- 
resentative, whose function is to bring about, mod- 
ify, affect, accept performance of, or terminate 
contractual obligations between principal and 
third persons. Saums v. Parfet, 270 Mich. 165, 258 
N.W. 235. One who undertakes to transact some 
business, or to manage some affair, for another, 
by the authority and on account of the latter, and 
to render an account of it. 1 Livermore, Ag. 67. 
See Co.Litt. 207; 1 B. & P. 316; Thomas B. Jeffrey 
Co. v;Lockridge, 173 Ky. 282, 190 S.W. 1103, 1105. 
One who acts for or in place of another by author- 
ity from him; a substitute, a deputy, appointed by 
principal with power to do the things which prin- 
cipal may do. Stephenson v. Golden, 279 Mich. 
710, 276 N.W. 849. One who deals not only with 
things, as does a servant, but with persons, using 
his own discretion as to means, and frequently 
establishing contractual relations between his 


85 



AGENT 


principal and third persons. Rendleman v. Niag- 
ara Sprayer Co., D.C.I11., 16 F.2d 122, 124. See, 
also, State v. Bond, 94 W.Va. 255, 118 S.E. 276, 279. 

Agent and patient. A phrase indicating the state of a 
person who is required to do a thing, and is at the same 
time the person to whom it is done ; as, when a man is 
indebted to another, and he appoints him his executor, 
required to pay the debt in his capacity of executor, and 
entitled to receive it in his own right. Termes de la Ley. 

Apparent agent or ostensible agent. One whom the prin- 
cipal, either intentionally or by want of ordinary care, 
induces third persons to believe to be his agent, though he 
has not, either expressly or by implication, conferred 
authority on him. Ware v. Home Mut. Ins. Ass'n of Iowa, 
135 Neb. 329, 281 N.W. 617, 620. A person who, whether 
or not authorized, reasonably appears to third person, 
because of manifestations of another, to be authorized to 
act as agent for such other. Hansche v. A. J. Conroy, 
Inc., 222 Wis. 553, 269 N.W. 309, 312. 

Diplomatic agent. A person employed by a sovereign to 
manage his private affairs, or those of his subjects in his 
name, at the court of a foreign government. Wolff, Inst. 
Nat. § 1237. 

General agency business. One not engaged as agent for 
single firm or person, but holding himself out to public as 
being engaged in business of being agent. Comer v. State 
Tax Commission of New Mexico, 41 N.M. 403, 69 P.2d 936. 

General agent. One employed in his capacity as a pro- 
fessional man or master of an art or trade, or one to whom 
the principal confides his whole business or all transactions 
or functions of a designated class ; or he is a person who 
is authorized by his principal to execute all deeds, sign all 
contracts, or purchase all goods, required in a particular 
trade, business, or employment. See Story, Ag. § 17; 
Thompson .v. Michigan Mut. Life Ins. Co., 56 Ind.App. 502, 
105 N.E. 780, 782; Little v. Minneapolis Threshing Mach. 
Co., 166 Iowa 651, 147 N.W. 872, 873. One empowered to 
transact all business of principal at any particular time or 
any particular place, a general manager. Abuc Trading & 
Sales Corporation v. Jennings, 151 Md. 392, 135 A. 166, 173. 
An agent to manage buildings and lease and collect the 
rents, Daniel v. Pappas, C.C.A.Okl., 16 F.2d 880, 883. An 
agent empowered to enter into contracts without consult- 
ing insurer, notwithstanding restriction of his territory, 
London & Lancashire Ins. Co. v. McWilliams, 215 Ala. 481, 
110 So. 909, 910. 

Local agent. One appointed to act as the representative 
of a corporation and transact its business generally (or 
business of a particular character) at a given place or 
within a defined district. See Frick Co. v. Wright, 23 Tex. 
Civ.App. 340, 55 S.W. 608; Moore v. Freeman's Nat. Bank, 
92 N.C. 594. 

Managing agent. A person who is invested with general 
power, involving the exercise of judgment and discretion, 
as distinguished from an ordinary agent or employee, who 
acts in an inferior capacity, and under the direction and 
control of superior authority, both in regard to the extent 
of the work and the manner of executing the same. Redd- 
ington v. Mariposa Land & Min. Co., 19 Hun, N.Y., 405; 
Taylor v. Granite State Prov. Ass'n, 32 N.C. 992, 136 N.Y. 
343, 32 Am. St. Rep. 749. One who has exclusive supervision 
and control of some department of a corporation's busi- 
ness, the management of which requires of such person 
the exercise of independent judgment and discretion, and 
the exercise of such authority that it may be fairly gaid 
that service of summons upon him will result in notice to 
the corporation. Federal Betterment Co. v. Reeves, 73 
Kan. 107, 84 P. 560, 4 L.R.A.,N.S., 460; Hatinen v. 
Payne, 150 Minn. 344, 185 N.W. 386, 387. As used in sec- 
tion 4274, Wilson's Statutes of Oklahoma 1903, Ann., an 
agent whose agency extends to all the transactions of the 
corporation within the state; one who has or is engaged 
in the management of the business of the corporation, in 
distinction from the management of a local or particular 
branch or department of said business. Waters Pierce Oil 
Co. v. Foster, 52 Okl. 412, 153 P. 169, 171. 

Mercantile agents. Agents employed for the sale of 
goods or merchandise are called "mercantile agents," and 
are of two principal classes, — brokers and factors (q. v.); 
a factor is sometimes called a "commission agent," or 
"commission merchant." Russ. Mere. Ag. 1. 


Practice of the House of Lords and Privy Council. In 
appeals, solicitors and other persons admitted to practice 
in those courts in a similar capacity to that of solicitors 
in ordinary courts, are technically called "agents." Macph. 
Priv. Coun. 65. 

Private agent. An agent acting for an individual in his 
private affairs; as distinguished from a public agent, who 
represents the government in some administrative capac- 
ity. 

Public agent. An agent of the public, the state, or the 
government; a person appointed to act for the public in 
some matter pertaining to the administration of govern- 
ment or the public business. See Story, Ag. § 302; White- 
side v. United States, 93 U.S. 254, 23 L.Ed. 882. 

Real-estate agent. Any person whose business it is to 
sell, or offer for sale, real estate for others, or to rent 
houses, stores, or other buildings, or real estate, or to col- 
lect rent for others. Act July 13, 1866, c. 184, § 9, par. 25; 
14 St. at Large, 1 18. Carstens v. McReavy, 1 Wash. St. 359, 
25 P. 471. 

A special agent is one employed to conduct a particular 
transaction or piece of business for his principal or author- 
ized to perform a specified act. Hinkson v. Kansas City 
Life Ins. Co., 93 Or. 473, 183 P. 24, 29; Pettijohn v. St. 
Paul Fire & Marine Ins. Co., 100 Kan. 482. 164 P. 1096. 
1097; Hoffman v. Marano, 71 Pa.Super.Ct. 26, 28. 

AGENTES ET CONSENTIENTES PART PCENA 
PLECTENTUR. Acting and consenting parties 
are liable to the same punishment. 5 Coke, 80. 

AGER. Lat. A field; land generally. A portion 
of land inclosed by definite boundaries. Munici- 
pality No. 2 v. Orleans Cotton Press, 18 La. 167, 
36 Am. Dec. 624. In old English law, an acre (q. 
V.). Spelman. 

AGGER. Lat. In the civil law, a dam, bank or 
mound. Cod. 9, 38; Townsh.Pl. 48. 

AGGRAVATED ASSAULT. The term has no tech- 
nical and definite common law meaning. In re 
Burns, C.C.Ark., 113 F. 987; People v. Ochotski, 
115 Mich. 601, 73 N.W. 889. The term is one which 
is employed to describe an assault which has, in 
addition to the mere intent to commit it, another 
object which is also criminal, Brimhall v. State, 
31 Ariz. 522, 255 P. 165, 53 A.L.R. 231; or to in- 
clude all those species of assault which, for vari- 
ous reasons, have come to be regarded as more 
heinous than common assault, State v. Jones, 133 
S.C. 167, 130 S.E. 747; or which have been made 
the subject of special legislative provisions, Daf- 
fan v. State, Tex.Cr.App., 21 S.W. 2d 301 and Nje- 
cick v. State, 178 Wis. 94, 189 N.W. 147. 

An assault where the means or instrument used to 
accomplish the injury is highly dangerous or where assail- 
ant has some ulterior and malicious motive in committing 
assault other than a mere desire to punish injured person. 
Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180, 181, 182 ; 
when committed with a deadly weapon under circum- 
stances not amounting to an intent to murder, Myers v. 
State, 72 Tex.Cr.R. 630, 163 S. W. 432 ; or when the instru- 
ment or means used is such as inflicts disgrace upon the 
person assaulted, Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W. 
1088; Scott v. State, 73 Tex.Cr.R. 622, 166 S. W. 729, 730 
(indecent and improper fondling of the person) . In Ari- 
zona, aggravated assault is different from simple assault 
only by infliction of serious bodily injury, Brimhall v. 
State, 31 Ariz. 522, 255 P. 165, 166, 53 A.L.R. 231. 

AGGRAVATING. Passenger ejected from plane. 
Delta Air Corporation v. Porter, 70 Ga.App. 152, 
27 S.E. 2d 758, 762. 


86 



AGIST 


AGGRAVATION. Any circumstance attending 
the commission of a crime or tort which increases 
its guilt or enormity or adds to its injurious 
consequences, but which is above and beyond the 
essential constituents of the crime or tort itself. 

Matter of aggravation, correctly understood, does not 
consist in acts of the same kind and description as those 
constituting the gist of the action, but in something done 
by the defendant, on the occasion of committing the tres- 
pass, which is, to some extent, of a different legal char- 
acter from the principal act complained of. Hathaway v. 
Rice, 19 Vt. 107. So on an indictment for murder the pris- 
oner may be convicted of manslaughter, for the averment 
of malice aforethought is merely matter of aggravation. 
Co.Litt. 282 a. 

In pleading, the introduction of matter into the 
declaration which tends to increase the amount of 
damages, but does not affect the right of action 
itself. Steph.Pl. 257; 12 Mod. 597. 

AGGRAVATION OF THE DISABILITY. Refers 
to the course or progress of the workman's condi- 
tion resulting from the specific injury for which 
an award or arrangement of compensation has 
been made. Keefer v. State Industrial Accident 
Commission, 171 Or. 405, 135 P.2d 806, 809. 

AGGREGATE. Entire number, sum, mass, or 
quantity of something; amount; complete whole, 
and one provision under will may be the aggre- 
gate if there are no more units to fall into that 
class. In re Curley's Will, 151 Misc. 664, 272 N. 
Y.S. 489. Composed of several; consisting of 
many persons united together; a combined whole. 

1 Bl.Comm. 469. 

AGGREGATE CORPORATION. See Corporation. 

AGGREGATES. Name for materials consisting 
largely of rock, gravel and sand used for construc- 
tion and surfacing of highways or, as a compo- 
nent part, in forming concrete for such construc- 
tion. Pioneer Gravel Equipment Mfg. Co. v. Dia- 
mond Iron Works, C.C.A.Minn., 72 F.2d 161. 

AGGREGATIO MENTIUM. The meeting of 
minds. The moment when a contract is com- 
plete. A supposed derivation of the word "agree- 
ment," q. v. 

AGGREGATION. In law of patents, it means 
that the elements of a claimed combination are 
incapable of co-operation to produce a unitary re- 
sult, and in its true sense does not need prior art 
patents to support it. National Popsicle Corpo- 
ration v. Harvey, D.C.Pa., 6 F.Supp. 784, 786. 

It does not imply mechanical interaction of parts, but 
only union of all elements of invention to realize single 
purpose. Simplex Piston Ring Co. of America v. Horton- 
Gallo-Creamer Co., C.C.A.Conn., 61 F.2d 748, 750. A com- 
bination which merely brings together two or more func- 
tions to be availed of independently of each other does not 
represent "invention" but constitutes mere "aggregation.", 
Hemming v. S. S. Kresge Co., D.C.Conn., 24 F.Supp. 981, 
983. The assembly of old elements, in a device in which 
each performs the same function in the same way as it did 
when used alone, without mutuality of action, interaction, 
or co-operation, is mere "aggregation" not involving inven- 
tion. In re Smith, 57 App.D.C. 204, 19 F.2d 678, 679. 

AGGRESSOR. One who first employs hostile 
force. Penn v. Henderson, 174 Or. 1, 146 P.2d 
"160, 766. The party who first offers violence or 


offense. He who begins a quarrel or dispute, ei 
ther by threatening or striking another. See Wil- 
kie v. State, 33 Okl.Cr. 225, 242 P. 1057, 1059. 

AGGRIEVED. Having suffered loss or injury; 
damnified; injured. 

AGGRIEVED PARTY. One whose legal right is 
invaded by an act complained of, or whose pe- 
cuniary interest is directly affected by a decree 
or judgment. Glos v. People, 259 111. 332, 102 N.E. 
763, 766, Ann.Cas.l914C, 119. See next topic. 
One whose right of property may be established 
or divested. McFarland v. Pierce, 151 Ind. 546, 45 
N.E. 706. The word "aggrieved" refers to a sub- 
stantial grievance, a denial of some personal or 
property right, or the imposition upon a party of 
a burden or obligation. Roullard v. McSoley, 54 
R.I. 232, 172 A. 326, 327. Injured in a legal sense. 
In re Donnelly's Estate, 55 S.D. 426, 226 N.W. 563, 
565. 

Adoption, Appeal of Cummings, 126 Me. Ill, 136 A. 662, 
663; disbarment, State v. Hunter, 152 Tenn. 233, 276 S. W. 
639, 640; bar association, State v. Huddleston, 173 Ark. 
686, 293 S.W. 353, 358; contra , disciplinary proceedings; In 
re Dolphin, 240 N.Y. 89, 147 N.E. 538, 539; lunacy inquisi- 
tion, Commonwealth v. Davidson, 269 Pa. 218, 112 A. 115. 
One 'against whom error has been committed, Kinealy v. 
Macklin, 67 Mo. 95. Or one against whom an appealable 
order or judgment has been entered. Ely v. Frisbie, 17 
Cal. 260. Any party having an interest recognized by law 
in the subject-matter, which interest is injuriously affected 
by judgment. Hornbeck v. Richards, 80 Mont. 27, 257 P. 
1025, 1026. A complainant who has received less than the 
relief demanded, or a defendant who has not been 
accorded the full amount of his set-off or counterclaim. 
Blanchard v. Neill, 83 N.J.Eq. 446, 91 A. 811. See, also, 
Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080, 
1081. One under necessity of answering or replying to 
irrelevant and redundant matter in a pleading. Shea v. 
Kiely, Sup., 167 N.Y.S. 570, 572. 

AGILD. In Saxon law, free from penalty, not 
subject to the payment of gild, or weregild; that 
is, the customary fine or pecuniary compensation 
for an offense. Spelman; Cowell. 

AGILER. In Saxon law, an observer or informer. 

AGILLARIUS. L. Lat. In old English law, a 
hayward, herdward, or keeper of the herd of cat- 
tle in a common field. Cowell. 

AGIO. In commercial law, a term used to ex- 
press the difference in point of value between 
metallic and paper money, or between one sort of 
metallic money and another. McCul.Dict. 

An Italian word for accommodation. 

AGIOTAGE. A speculation on the rise and fall 
of the public debt of states, or the public funds. 
The speculator is called "agioteur. " 

AGIST. In ancient law it meant to take in and 
give feed to the cattle of strangers in the king's 
forest, and to collect the money due for the same 
to the king's use. Spelman; Cowell. 

In modern law it means to take in cattle to feed, 
or pasture, at a certain rate of compensation. 
Bank of Tehama County v. Federal Realty Co., 2 
Cal. 2d 333, 40 P.2d 507, 509. See Agistment. 


87 



AGISTATIO 


AGISTATIO ANIMALIUM IN FORESTA. The 
drift or numbering of cattle in the forest. 

AGISTER. See Agistor. 

AGISTERS, or GIST TAKERS. Officers appoint- 
ed to look after cattle, etc. See Williams, Com- 
mon, 232. 

AGISTMENT. The taking and feeding of other 
men's cattle in the king's forest, or on one's own 
land, at a certain rate. Bank of Tehama County 
v. Federal Realty Co., 2 Cal.2d 333, 40 P.2d 507, 
509. Also the profit or recompense for such pas- 
turing of cattle. Williams v. Miller, 68 Cal. 290, 
9 Pac. 166. A species of bailment. Patchen- 
Wilkes Stock Farm Co. v. Walton, 166 Ky. 705, 179 
S.W. 823. 

In canon law it is a composition or mean rate 
at which some right or due might be reckoned. 

There is also agistment of sea-banks, where 
lands are charged with a tribute to keep out the 
sea; and terra agistatce are lands whose owners 
must keep up the sea-banks. Holthouse. 

Tithe of Agistment was a small tithe paid to 
the rector or vicar on cattle or other produce of 
grass lands. It was paid by the occupier of the 
land and not by the person who put in his cattle 
to graze. Rawle, Exmoor 31. 

AGISTOR. One who takes in horses or other ani- 
mals to pasture at certain rates. Story, Bailm. § 
443; Coxv. Chase, 99 Kan. 740, 163 P. 184, 186. 
An officer who had the charge of cattle pastured 
for a certain stipulated sum in the king's forest 
and who collected the money paid for them. 

AGITATOR. One who stirs up; excites; ruffles; 
perturbs. One who incessant advocates a social 
change. 

Labor agitator. One actively engaged in promoting the 
interests of the laboring men. The term does not imply 
the use of unlawful or improper means. Wabash R. Co. 
v. Young, 69 N.E. 1003, 1005, 1006, 162 Ind. 102, 4 L.R.A., 
N.S., 1091. 

Seditious agitator. A disturber of the public peace, a 
subverter of just laws, and a bad citizen. Wilkes v. 
Shields, 64 N.W. 921, 62 Minn. 426, 427. 

AGNATES. In the law of descents, relations by 
the father, or on the father's side. This word 
is used in the Scotch law, and by some writers as 
an English word, cqrresponding with the Latin 
agnati, (q. v.) Ersk.Inst. b. 1, tit. 7, § 4. 

AGNATI. In Roman law, the term included all 
the cognates who trace their connection exclusive- 
ly through males. 

A table of cognates is formed by taking each lineal 
ancestor in turn and including all his descendants of both 
sexes in the tabular view. If, then, in tracing the various 
branches of such a genealogical table or tree, we stop 
whenever we come to the name of a female, and pursue 
that particular branch or ramification no further, all who 
remain after the descendants of women have been excluded 
are agnates, and their connection together is agnatic rela- 
tionship. Maine, Anc. Law, 142. 

All persons are agnatically connected together who 
are under the same patria potestas, or who have been 
under it, or who might have been under it if their lineal 
ancestor had lived long enough to exercise his empire. 
Maine, Anc. Law, 144. 


The agnate family consisted of all persons living at the 
same time, who would have been subject to the patris 
potestas of a common ancestor, if his life had been con- 
tinued to their time. Hadl.Rom.Law, 131. 

Cognates were all persons who could trace their blood to 
a single ancestor or ancestress, and agnates were those 
cognates who traced their connection exclusively through 
males. Maine, Anc. Law. Between agnati and cognati 
there is this difference : that, under the name of agnati, 
cognati are included, but not 6 converso; for instance, a 
father's brother, that is, a paternal uncle, is both agnatus 
and cognatus, but a mother’s brother, that is, a maternal 
uncle, is a cognatus but not agnatus. (Dig. 38, 7, 5, pr.) 
Burrill. 

AGNATIC. [From agnati, q. v.] Derived from 
or through males. 2 Bl.Comm. 236. 

AGNATIO. In the civil law, relationship on the 
fathers' side; the relationship of agnati; agna- 
tion. Agnatio a patre est. Inst. 3, 5, 4; Id. 3, 6, 6. 

AGNATION. Kinship by the father's side. See 
Agnates; Agnati. 

AGNOMEN, Lat. An additional name or title; 
a nickname. A name or title which a man gets by 
some action or peculiarity; the last of the four 
names sometimes given a Roman. Thus, Scipio 
Africanus, (the African,) from his African vic- 
tories. Ainsworth; Calvinus, Lex. See Nomen. 

AGNOMINATION. A surname; an additional 
name or title; agnomen. 

AGNUS DEL Lat. Lamb of God. A piece of 
white wax, in a flat, oval form, like a small cake, 
stamped with the figure of a lamb, and consecrat- 
ed by the pope. Cowell. 

AGONY. Violent physical pain or mental dis- 
tress. City of Chicago v. McLean, 133 111. 148, 
24 N.E. 527, 8 L.R.A. 765. 

AGRAPHIA. See Aphasia. 

AGRARIAN. Relating to land, or to a division or 
distribution of land; as an agrarian law. 

AGRARIAN LAWS. In Roman law, laws for the 
distribution among the people, by public author- 
ity, of the lands constituting the public domain, 
usually territory conquered from an enemy. 

In common parlance the term is frequently ap- 
plied to laws which have for their object the more 
equal division or distribution of landed property; 
laws for subdividing large properties and increas- 
ing the number of landholders. 

AGRARIUM. A tax upon or tribute payable out 
of land. 

AG REAMENTUM. In old English law, agree- 
ment; an agreement. Spelman. 

AGREE. To concur; come into harmony; give 
mutual assent; unite in mental action; exchange 
promises; make an agreement; arrange; to settle. 
Mickleson v. Gypsy Oil Co., 110 Okl. 117, 238 P. 
194, 198. Consent. Smith v. Jones, 185 Ga. 236, 
194 S.E. 556, 560. Harmonize or reconcile. "You 
will agree your books." 8 Coke, 67. Concur or 
acquiesce in; approve or adopt. Agreed, agreed 


88 



AGREEMENT 


to, are frequently used in the books, (like accord,) 
to show the concurrence or harmony of cases. 
Agreed, per curiam is a common expression. 
Usually implies some contractual undertaking. 
In re Gray's Estate, 160 Misc. 710, 290 N.Y.S. 603, 
605. To grant or covenant, as when a grantor 
agrees that no building shall be erected on an ad- 
joining lot; Hogan v. Barry, 143 Mass. 538, 10 N. 
E. 253; or a mortgagor agrees to cause all taxes 
to be paid; Mackay v. Truchon, 171 Mo.App. 42, 
153 S.W. 502, 503. 

AGREt. In French law, a person authorized to 
represent a litigant before the Tribunals of Com- 
merce. If such person be a lawyer, he is called 
an auocat-agree. Coxe, Manual of French Law. 

AGREEANCE. In Scotch law, agreement; an 
agreement or contract. 

AGREED. Settled or established by agreement. 

This word in a deed creates a covenant. 

It is a technical term, synonymous with "contracted," 
McKisick v. McKisick, Meigs Tenn. 433. It means, ex vi 
termini, that it is the agreement of both parties. Aikin v. 
Albany, V. & C. R. Co., 26 Barb.N.Y. 298. 

AGREED CASE. Stipulations signed by litigants' 
attorneys, constituted an "agreed case". In re 
Davis Bros. Stone Co., 245 Wis. 130, 13 N.W.2d 
512, 515. 

Evidence presented by stipulation that stated facts con- 
stituted entire evidence is not an "agreed case". Struble- 
Werneke Motor Co. v. Metropolitan Securities Corporation, 
93 Ind.App. 416, 178 N.E. 460, 462. Nor is an agreed state- 
ment of facts on which a case is submitted in lieu of evi- 
dence. Byers v. Essex Inv. Co., 281 Mo. 375, 219 S. W. 570, 
571; Reddick v. Board of Com'rs of Pulaski County, 14 
Ind.App. 598, 41 N.E. 834. 

AGREED ORDER. The only difference between 
an agreed order and one which is made in the due 
course of the proceedings in an action is that in 
the one case it is agreed to, and in the other it 
is made as authorized by law. Claflin v. Gibson, 
21 Ky.Law Rep. 337, 51 S.W. 439. 

AGREED STATEMENT OF FACTS. A statement 
of facts, agreed on by the parties as true and 
correct, to be submitted to a court for a ruling on 
the law of the case. United States Trust Co. v. 
New Mexico, 183 U.S. 535, 22 Sup.Ct. 172, 46 L.Ed. 
315. See Case Stated. 

Where testimony was contradictory, stipulation relating 
to testimony did not constitute an "agreed state of facts". 
McPherson v. State Industrial Accident Commission, 169 
Or. 190, 127 P.2d 344, 346. 

AGREEMENT. A coming or knitting together of 
minds; a corning together in opinion or determi- 
nation; the coming together in accord of two 
minds on a given proposition; in law a concord 
of understanding and intention between two or 
more parties with respect to the effect upon their 
relative rights and duties, of certain past or fu- 
ture facts or performances; the consent of two or 
more persons concurring respecting the transmis- 
sion of some property, right, or benefits, with the 
view of contracting an obligation, a mutual ob- 
ligation. Bac.Abr.; 'Rocha v. Hulen, 6 Cal.App.2d 
245, 44 P.2d 478, 482. 


The act of two or more persons, who unite in 
expressing a mutual and common purpose, with 
the view of altering their rights and obligations. 
The union of two or more minds in a thing done 
or to be done; a mutual assent to do a thing. 
Corn. Dig. "Agreement," A 1. See Aggregatio 
Mentium. Carter v. Prairie Oil 8s Gas Co., 58 Okl. 
365, 160 P. 319, 322. A compact between parties 
who are thereby subjected to the obligation or to 
whom the contemplated right is thereby secured. 
People v. Mills, 160 Misc. 730, 290 N.Y.S. 48, 52. 

Although often used as synonymous with "contract," 
Douglass v. W. L. Williams Art Co., 143 Ga. 846, 85 S.E. 
993, it is a wider term than "contract" (Anson, Cont. 4.) 
An agreement might not be a contract, because not fulfill- 
ing some requirement. And each of a series of mutual 
stipulations or constituent clauses in a contract might be 
denominated an "agreement." The meaning of the con- 
tracting parties is their agreement. Whitney v. Wyman, 
101 U.S. 396, 25 L.Ed. 1050. "Agreement" is seldom 
applied to specialties. Pars. Cont. 6. 

"Agreement" is not synonymous with "promise" or 
"undertaking." It signifies a mutual contract, on consid- 
eration. Andrews v. Pontue, 24 Wend.N.Y. 285; Wain v. 
Warlters, 5 East, 10; wherein parties must have a distinct 
intention common to both, and without doubt or difference. 
Blake v. Mosher, 11 Cal.App.2d 532, 54 P.2d 492, 494. 

The writing or instrument which is evidence of 
an agreement. 

Classification 

Conditional agreements, the operation and effect of 
which depend upon the existence of a supposed state of 
facts, or the performance of a condition, or the happening 
of a contingency. 

Executed agreements, which have reference to past 
events, or which are at once closed and where nothing fur- 
ther remains to be done by the parties. 

Executory agreements are such as are to be performed 
in the future. They are commonly preliminary to other 
more formal or important contracts or deeds, and are usu- 
ally evidenced by memoranda, parol promises, etc. 

Express agreements are those in which the terms and 
stipulations are specifically declared and avowed by the 
parties at the time of making the agreement. 

Implied agreement. (1) Implied in fact. One inferred 
from the acts or conduct of the parties, instead of being 
expressed by them in written or spoken words. Baltimore 
Mail S. S. Co. v. U. S., C.C.A.Md., 76 F.2d 582, 585. (2) 
Implied in law; more aptly termed a constructive or quasi 
contract. One where, by fiction of law, a promise is 
imputed to perform a legal duty, as to repay money 
obtained by fraud or duress. Baltimore Mail S. S. Co. v. 
U. S., C.C.A.Md., 76 F.2d 582, 585. One inferred by the 
law where the conduct of the parties with reference to the 
subject-matter is such as to induce the belief that they 
intended to do that which their acts indicate they have 
done. Baltimore & 0. R. Co. v. U. S., 261 U.S. 592, 43 S.Ct. 
425, 67 L.Ed. 816; Cuneo v. De Cuneo, 24 Tex.Civ.App. 436, 
59 S.W. 284. 

Parol agreements. Such as are either by word of mouth 
or are committed to writing, but are not under seal. The 
common law draws only one great line, between things 
under seal and not under seal. Wharton. 

In agreement means in conformity, or harmony' 
with. Brown Real Estate Co. v. Lancaster Coun- 
ty, 110 Neb. 665, 194 N.W. 897, 898. 

AGREEMENT FOR INSURANCE. An agree- 
ment often made in short terms preliminary to 
the filling out and delivery of a policy with spe- 
cific stipulations. 

AGREEMENT NOT TO BE PERFORMED WITH- 
IN A YEAR. An agreement that necessarily must 
require more than year for performance. Marble 


89 



AGREEMENT 


v. Town of Clinton, Mass., 9 N.E.2d 522, 524, 111 
A.L.R. 1101. Incapable of performance within 
one year. Street v. Maddux, Marshall, Moss & 
Mallory, 58 App.D.C. 42, 24 F.2d 617, 619. 

AGREEMENT OF SALE; AGREEMENT TO 
SELL. An agreement of sale may imply not 
merely an obligation to sell, but an obligation on 
the part of the other party to purchase (cf. Loud 
v. St. Louis Union Trust Co., 313 Mo. 552, 281 
S.W. 744, 755) while an agreement to sell is sim- 
ply an obligation on the part of the vendor or 
promisor to complete his promise of sale; Treat 
v. White, 181 U.S. 264, 21 Sup.Ct. 611, 45 L.Ed. 
853. It is a contract to be performed in future, 
and, if fulfilled, results in a sale; it is prelimi- 
nary to sale and is not the sale. Callender v. 
Crossfield Oil Syndicate, 84 Mont. 263, 275 P. 273, 
276. 

AGREEMENT TO SELL LAND. A contract to be 
performed in future which if fulfilled results in 
sale. In re Frayser's Estate, 401 111. 364, 82 N.E. 
2d 633, 638. 

AGREER. Fr. In French marine law, to rig or 
equip a vessel. Ord. Mar. liv. 1, tit. 2, art. 1. 

AGREZ. Fr. In French marine law, the rig- 
ging or tackle of a vessel. Ord. Mar. liv. 1, tit. 2, 
art. 1; Id. tit. 11, art. 2; Id. liv. 3, tit. 1, art. 11. 

AGRI. Arable lands in common fields. 

AGRI LIMITATI. 

In Roman law, lands belonging to the state by 
right of conquest, and granted or sold in plots. 
Sandars, Just. Inst., 5th Ed., 98. 

In modern civil law, lands whose boundaries 
are strictly limited by the lines of government 
surveys. Hardin v. Jordan, 140 U.S. 371, 11 Sup. 
Ct. 808, 35 L.Ed. 428. 

AGRICULTURAL. Pertaining to, or dealing with, 
agriculture; also, characterized by or engaged in 
farming as the leading pursuit. Oak Woods Cem- 
etery Ass'n v. Murphy, 383 111. 301, 50 N.E. 2d 582, 
587. 

AGRICULTURAL CHEMISTRY. A study of 
products of the soil, especially foods, their nutri- 
tive value, their intensive production, study of 
composition of soil, chemical methods of fertiliza- 
tion, prevention or amelioration of plant diseases, 
extinction of insects and other detriments to agri- 
culture, and in general study of animal and plant 
life with relation to the science of chemistry. In 
re Frasch's Estate, 125 Misc.Rep. 381, 211 N.Y.S. 
635, 638. 

AGRICULTURAL COMMODITIES. Generally 
synonymous with agricultural or farm products, 
and not including agricultural implements, Bowles 
v. Rock, D.C.Neb., 55 F.Supp. 865, 868; or com- 
mercial fertilizer and ground and crushed lime- 
stone, Stiver v. Holley, 215 Ind. 9, 17 N.E. 2d 831, 
832. 

AGRICULTURAL EMPLOYMENT. Farm labor 
synonymous, and includes all farm work and work 


incidental thereto. Smythe v. Phoenix, 63 Idaho 
585, 123 P.2d 1010, 1012. 

AGRICULTURAL HOLDING. Land cultivated 
for profit in some way. Within the meaning of 
the English Agricultural Holdings act of 1883, 
the term will not include natural grass lands. 
Such lands are pastoral holdings. 32 S.J. 630. 

AGRICULTURAL LABOR. Services performed 
on farm, for owner or tenant. California Em- 
ployment Commission v. Butte County Rice Grow- 
ers Ass'n, Cal., 154 P.2d 892, 894. Broader in 
meaning than farming or farm labor and includes 
one engaged in horticulture. St. Louis Rose Co. 
v. Unemployment Compensation Commission, 348 
Mo. 1 153, 159 S.W. 2d 249, 250, and maintenance 
work and similar service in employer's farm pack- 
ing house. Latimer v. United States, D.C.Cal., 
52 F.Supp. 228, 234, 235, 236, 237. The science and 
art of production of plants and animals useful 
to man. Murphy v. Mid-West Mushroom Co., 350 
Mo. 658, 168 S.W. 2d 75, 77, 78. 

AGRICULTURAL LANDS. A term used merely 
to distinguish rural from urban or other prop- 
erties. Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W. 
2d 891, 893. 

Land may be assessable as "agricultural land" though it 
be covered by native timber and underbrush, grass, and 
weeds. Milne v. McKinnon, 32 S.D. 627, 144 N.W. 117, 118. 
The term is synonymous with land "agricultural in char- 
acter." State v. Stewart, 58 Mont. 1, 190 P. 129, 131. 

AGRICULTURAL LIEN. A statutory lien in 
some states to secure money or supplies advanced 
to an agriculturist to be expended or employed 
in the making of a crop and attaching to that 
crop only. Jones-Phillips Co. v. McCormick, 174 
N.C. 82, 93 S.E. 449, 452. 

AGRICULTURAL PRODUCT. Things which 
have a situs of their production upon the farm 
and which are brought into condition for uses 
of society by labor of those engaged in agricul- 
tural pursuits as contradistinguished from manu- 
facturing or other industrial pursuits. In re 
Rodgers, Neb., 134 Neb. 832, 279 N.W. 800, 803. 

That which is the direct result of husbandry and the 
cultivation of the soil. The product in its natural unmanu- 
factured condition. Getty v. Milling Co., 40 Kan. 281, 19 
P. 617. It has been held not to include beef cattle; Davis 
& Co. v. City of Macon, 64 Ga. 128, 37 Am. Rep. 60; but to 
include forestry products; Northern Cedar Co. v. French, 
131 Wash. 394, 230 P. 837, 846. 

AGRICULTURAL PURSUITS. Every process and 
step taken and necessary to the completion of a 
finished farm product. Big Wood Canal Co. v. 
Unemployment Compensation Division of Indus- 
trial Accident Board, 61 Idaho 247, 100 P.2d 49, 51. 

AGRICULTURAL SOCIETY. One for promoting 
agricultural interests, such as improvement of 
land, implements, and brands of cattle. Crete 
Mills v. Nebraska State Board of Agriculture, 132 
Neb. 244, 271 N.W. 684, 688; or for giving agricul- 
tural fairs; Town of West Hartford v. Connecticut 
Fair Ass'n, 88 Conn. 627, 92 A. 432. 


90 



AIDER 


AGRICULTURAL WORKER. Tasks incidental to 
agricultural activities all are within the scope of 
the employment of an "agricultural worker." 
Melendez v. Johns, Ariz., 76 P.2d 1163, 1167. 

AGRICULTURE. The art or science of cultivating 
the ground, including the harvesting of crops, 
and in a broad sense, the science or art of produc- 
tion of plants and animals useful to man, includ- 
ing in a variable degree, the preparation of these 
products for man's use. In the broad sense, it in- 
cludes farming, horticulture, forestry, together 
with such subjects as butter, cheese, making 
sugar, etc. Sancho v. Bowie, C.C. A. Puerto Rico, 
93 F.2d 323, 324. 

The cultivation of soil for food products or any other 
useful or valuable growths of the field or garden tillage, 
husbandry; also, by extension, farming, including any 
industry practiced by a cultivator of the soil in connection 
with such cultivation, as breeding and rearing of stock, 
dairying, etc. The science that treats of the cultivation 
of the soil. Stand. Diet. ; State v. Stewart, 58 Mont. 1, 190 
P. 129, 131 

"Agriculture" refers to the field or farm with all its 
wants, appointments, and products, as distinguished from 
"horticulture," which refers to the garden, with its less 
important though varied products. Dillard v. Webb, 55 
Ala. 468. 

AGUSADURA. In ancient customs, a fee, due 
from the vassals to their lord for sharpening 
their plowing tackle. 

AHTEID. In old European law, a kind of oath 
among the Bavarians. Spelman. In Saxon law. 
One bound by oath, q. d. "oathtied." From ath, 
oath, and tied. Id. 

AID. To support, help, assist, or strengthen. 
Hines v. State, 16 Ga.App. 411, 85 S.E. 452, 454. 
Act in cooperation with. Cornett v. Common- 
wealth, 198 Ky. 236, 248 S.W. 540, 542. 

Supplement the efforts of another. Anderson 
v. Board of Medical Examiners, 117 Cal.App. 113, 
3 P.2d 344, 346. 

A person "aids" when being present at the time and 
place he does some act to render aid to the actual perpe- 
tration of the crime, though he takes no direct share in 
its commission. State v. Johnson, 220 N.C. 773, 18 S.E. 2d 
358, 360. 

This word must be distinguished from its synonym 
"encourage," the difference being that the former connotes 
active support and assistance. Although it may not import 
necessary criminality in the act furthered. See Abet. 

AID AND ABET. Help, assist, or facilitate the 
commission of a crime, promote the accomplish- 
ment thereof, help in advancing or bringing it 
about, or encourage, counsel, or incite as to its 
commission. State v. Lord, 42 N.M. 638, 84 P.2d 
80, 86. 

Implies knowledge. Winning v. Board of Dental Exam- 
iners, 114 Cal.App. 658, 300 P. 866, 868. 

At common law it consisted in being present at the time 
and place, and doing some act to render aid to the actual 
perpetrator of the crime, though without taking a direct 
share in its commission. See 4 Bl.Comm. 34; State v. 
Tally, 102 Ala. 25, 15 So. 722. 

It comprehends all assistance rendered by words, acts, 
encouragement, support, or presence, actual or construc- 
tive, to render assistance if necessary. Johnson v. State, 21 
Ala.App. 565, 110 So. 55; State v. Davis, 191 Iowa, 720, 183 
N.W. 314, 316. But it is not sufficient that there is a mere 


negative acquiescence not in any way made known to the 
principal malefactor. People v. Barnes, 311 111. 559, 143 
N.E. 445, 447. See Accessory; Abettor; Alder and Abet- 
tor. 

AID AND ASSIST. The words "aided and as- 
sisted," as used in the statute prohibiting the sale 
of intoxicating liquors, as regards the condemna- 
tion or confiscation of vehicles, implies either 
knowledge on the part of the owner that the 
vehicle was being used for unlawful transporta- 
tion, or such negligence or want of care as to 
charge him with such knowledge or notice. In re 
Gattina, 203 Ala. 517, 84 So. 760. 

AID AND COMFORT. Help; support; assistance; 
counsel; encouragement. 

As an element in the crime of treason (see Constitution 
of the United States, art. 3, § 3), the giving of "aid and 
comfort" to the enemy may consist in a mere attempt. It 
is not essential to constitute the giving of aid and com- 
fort that the enterprise commenced should be successful 
and actually render assistance. Young v. United States, 97 
U.S. 39, 62, 24 L.Ed. 992. An act which intentionally 
strengthens or tends to strengthen enemies of the United 
States, or which weakens or tends to weaken power of the 
United States to resist and attack such enemies. United 
States v. Haupt, D.C.I11., 47 F.Supp. 836, 839. Any inten- 
tional act furthering hostile designs of enemies of the 
United States. United States v. Haupt, D.C.I11., 47 F.Supp. 
836, 839. 

AID BOND, See Bond. 

AID OF THE KING. The king's tenant prays 
this, when rent is demanded of him by others. 

AID PRAYER. In English practice, a proceeding 
formerly made use of, by way of petition in court, 
praying in aid of the tenant for life, etc., from the 
reversioner or remainderman, when the title to 
the inheritance was in question. It was a plea in 
suspension of the action. 3 Bl.Comm. 300. 

AID SOCIETIES. See Benefit Societies. 

AIDER. One who is actually or constructively 
present at the commission of the offense and is a 
"principal". State v. Bachmeyer, 247 Wis. 294, 
19N.W.2d 261, 263. 

Mere proof of a defendant's presence at the time of the 
commission of a criminal act is not sufficient to render 
him an "alder". Gentry v. State, 65 Ga.App. 100, 15 S.E. 
2d 464, 465. 

AIDER AND ABETTOR. One who assists an- 
other in the accomplishment of a common design 
or purpose; he must be aware of, and consent to, 
such design or purpose. Peats v. State, 213 Ind. 
560, 12 N.E. 2d 270, 277. 

One who advises, counsels, procures, or encourages 
another to commit a crime, himself being guilty of some 
overt act or advocacy or encouragement of his principal, 
actually or constructively present when crime is commit- 
ted, and participating in commission thereof by some act, 
deed, word, or gesture, Turner v. Commonwealth, 268 Ky. 
311, 104 S.W. 2d 1085, and sharing the criminal intent of 
the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24, 
28. But one who incites or instigates the commission of a 
felony when he is neither actually nor constructively pres- 
ent is an "alder, abettor, or procurer" within the meaning 
of a statute. Neal v. State, 104 Neb. 56, 175 N.W. 669, 670. 

AIDER BY VERDICT. The healing or remission, 
by a verdict rendered, of a defect or error in 
pleading which might have been objected to before 
verdict. 


91 



ALDER 


The presumption of the proof of all facts nec- 
cessary to the verdict as it stands, coming to the 
aid of a record in which such facts are not distinct- 
ly alleged. 

AIDING AN ESCAPE. Any overt act, intended 
and useful to assist attempted or completed de- 
parture of prisoner from lawful custody before 
his discharge by due process of law. State v. 
Navarro, 131 Me. 345, 163 A. 103, 104. 

AIDS. In feudal law, originally mere benevo- 
lences granted by a tenant to his lord, in times of 
distress; but at length the lords claimed them as 
of right. 

They were principally three : (1) To ransom the lord's 
person, if taken prisoner ; (2) to make the lord's eldest 
son and heir apparent a knight; (3) to give a suitable 
portion to the lord's eldest daughter on her marriage. 
Abolished by 12 Car. II, c. 24. 

Also, extraordinary grants to the crown by the 
house of commons, which were the origin of the 
modern system of taxation. 2 Bl.Comm. 63, 64. 

A reasonable aid was a duty claimed by the lord of the 
fee of his tenants, holding by knight service, to marry his 
daughter, etc. Cowell. 

AIEL (spelled also Ayel, Aile, Ayle, and Aieul). 
L. Fr. A grandfather. 

A writ which lieth where the grandfather was 
seized in his demesne as of fee of any lands or 
tenements in fee simple the day that he died, and 
a stranger abateth or entereth the same day and 
dispossesseth the heir. Fitzh.Nat.Brev. 222; 
Termes de la Ley; 3 Bla.Com. 186; 2 Poll. & 
Maitl. 57. See Abatement of Freehold. 

AIELESSE. A Norman French term signifying 
"grandmother." Kelham. 

AILE. A corruption of the French word aieul, 
grandfather. See Aiel. 

AILMENT. Commonly means indisposition of 
body or mind, a slight illness. Mutual Life Ins. 
Co. of New York v. Burton, 167 Tenn. 606, 72 S. 
W.2d 778, 781. 

But within meaning of an application for a benefit cer- 
tificate, it is something which substantially impairs the 
health of the applicant, materially weakens the vigor of 
his constitution, or seriously deranges his vital functions, 
thereby excluding chronic rheumatism. National Ameri- 
cans v. Ritch, 121 Ark. 185, 180 S.W. 488, 489. And in life 
insurance application does not include mere temporary 
indisposition, which, though requiring medical treatment, 
is readily remediable. Zogg v. Bankers' Life Co. of Des 
Moines, Iowa, C.C.A.W.Va., 62 F.2d 575, 578. Nor passing 
discomfort. Washington Fidelity Nat. Ins. Co. v. Lacey, 
45 Ohio App. 104, 186 N.E. 751, 754. However, it covers 
disorders which could not properly be called diseases. 
Cromeens v. Sovereign Camp W. 0. W., Mo. App., 247 S.W. 
1033, 1034. 

AIM A WEAPON. To point it intentionally. Ed- 
wards v. State, 28 Ga.App. 466, 111 S.E. 748. 
"Aim" denotes direction toward some minute point 
in an object, while "point" implies direction toward 
the whole object. Buchanan v. State, 25 Okl.Cr. 
198, 219 P. 420, 423. 

AINESSE. In French feudal law, the right or 
privilege of the eldest born; primogeniture; 
esnecy. Guyot, Inst.Feud. c. 17. 


AIR. That fluid transparent substance which sur- 
rounds our globe. Bank v. Kennett, 101 Mo. App. 
370, 74 S.W. 474. 

AIR BASE. See Base. 

AIR CONDITION. To render a room, building, 
office, hotel or the like reasonably comfortable by 
circulating air which is maintained at a prede- 
termined temperature by either warming or cool- 
ing it. Magee Laundry & Cleaners v. Harwell 
Appliance Co., 184 Miss. 435, 185 So. 571, 572. 

AIR COURSES. As applied to the operation of 
coal mines, passages for conducting air. Ricardo 
v. Central Coal & Coke Co., 100 Kan. 95, 163 P. 
641, M3. See Airway. 

AIRCRAFT. Any contrivance used, or designed 
for navigation of or flight in the air, except a 
parachute or other contrivance designed for such 
navigation but used primarily as safety equip- 
ment. 49 U.S.C.A. §§ 171-184. 

As defined in the Uniform Aeronautics Act, the 
term includes balloon, airplane, hydroplane and 
every other vehicle used for navigation through 
the air. See Aeronautics; Airship; Hydro-Aero- 
plane. 

AIRE. In old Scotch law, the court of the justices 
itinerant, corresponding with the English eyre, (q. 
v.) Skene de Verb. Sign. voc. Iter. 

AIRPLANE. See Aeronautics; Hydro-Aeroplane; 
Aircraft; Airship. 

AIRPORT. Landing and taking off place for air 
planes. City of Mobile v. Lartigue, 23 Ala.App. 
479, 127 So. 257, 260. 

With its beacons, landing fields, runways, and hangars, 
it is analogous to a harbor with its lights, wharves, and 
docks; the one is the landing place and haven of ships 
that navigate the water, the other of those that navigate 
the air. Coleman v. City of Oakland, 1 10 Cal. App. 715, 295 
P. 59, 61. And includes all land, buildings, structures or 
other improvements, necessary or convenient in the estab- 
lishment and operation of an airport. Moore v. Gordon, 
Tex. Civ. App., 122 S.W.2d 239, 242. 

Any locality either of water or land which Is adapted 
for the landing and taking off of aircraft and which pro- 
vides facilities for shelter, supply, and repair of aircraft, 
or a place used regularly for receiving or discharging pas- 
sengers or cargo by air. 49 U.S.C.A. §§ 171-184. City of 
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478. 

AIRSHIP. Under some statutes it includes every 
kind of vehicle or structure intended for use as a 
means of transporting passengers or goods, or 
both, in the air. As defined by the International 
Flying Convention of 1919, an airship means an 
aircraft using gas lighter than air as a means of 
support and having means of propulsion. 

See Aeronautics; Aircraft; Hydro- Aeroplane. 

AIRT AND PAIRT. In old Scotch criminal law, 
accessary; contriver and partner. 1 Pitc.Crim. 
Tr. pt. 1, p. 133; 3 How. State Tr. 601. Now writ- 
ten art and part, (q. v.) 

AIRWAY. Applies to air routes for either air- 
planes or seaplanes and is a material or perma- 
nent way through the air laid out with precision 


92 



ALCOHOLISM 


and care that an engineer adopts in choosing the 
course of and laying down a roadway. City of 
Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 14, 63 
A.L.R. 478. 

In English law, a passage for the admission of 
air into a mine. 24 & 25 Viet. c. 97, § 28. See Air 
Courses. 

AISIAMENTUM (spelled also Esamentum, Ais- 
mentum). In old English law, an easement. Spel- 
man. 

AISNE or EIGNE. In old English law, the eldest 
or first born. 

AJOURNMENT. In French law, the document 
pursuant to which an action or suit is commenced, 
equivalent to the writ of summons in England. 
Actions, however, are in some cases commenced 
by requete or petition. Arg.Fr. Merc. Law, 545. 

AJUAR. In Spanish law, paraphernalia. The 
jewels and furniture which a wife brings in mar- 
riage. 

AJUTAGE (spelled also Adjutage). A conical tube 
used in drawing water through an aperture, by 
the use of which the quantity of water drawn is 
much increased. 

AKIN. In old English law. Of kin. "Next-a-kin." 
7 Mod. 140. 

AL. L. Fr. At the; to the. Al barre; at the 
bar. Al huis d'esglise; at the church door. 

ALIE ECCLESL7E. The wings or side aisles of a 
church. Blount. 

ALANERARIUS. A manager and keeper of dogs 
for the sport of hawking; from alanus, a dog 
known to the ancients. A falconer. Blount. 

ALARM LIST. The list of persons liable to mili- 
tary watches, who were at the same time exempt 
from trainings and musters. See Prov.Laws 1775- 
76, c. 10, § 18; Const. Mass. c. 1 1, § 1, art. 10; 
Pub.St.Mass.1882, p. 1287. 

ALBA FIRMA. In old English law, white rent; 
rent payable in silver or white money, as distin- 
guished from that which was anciently paid in 
corn or provisions, called black mail, or black 
rent; reditus nigri. Spelman; Reg.Orig. 319b. 

ALBACEA. In Spanish law, an executor or admin- 
istrator; one who is charged with fulfilling and 
executing that which is directed by the testator in 
his testament or other last disposition. Emeric 
v. Alvarado, 64 Cal. 529, 2 Pac. 418, 433. 

ALBANAGIUM. In old French law, the state of 
alienage; of being a foreigner or alien. 

ALBANUS. In old French law, a stranger, alien, 
or foreigner. 

ALBINATUS. In old French law, the state or 
condition of an alien or foreigner. 

ALBINATUS JUS. In old French law, the droit 
d'aubaine in France, whereby the king, at an 


alien's death, was entitiea to all his property, un- 
less he had peculiar exemption. Repealed in 
June, 1791. 

ALBUM BREVE. A blank writ; a writ with a 
blank or omission in it. 

ALBUS LIBER. The white book; an ancient 
book containing a compilation of the law and 
customs of the city of London. 

ALCABALA. In Spanish law, a duty of a certain 
per cent, paid to the treasury on the sale or ex- 
change of property. 

ALCAIDE. Sp. Jailer, warden, governor of a 
fortress. 

ALCALDE. The name of a judicial officer in 
Spain, and in those countries which have received 
their laws and institutions from Spain. His func- 
tions somewhat resembled those of mayor in small 
municipalities on the continent, or justice of the 
peace in England and most of the United States. 
Castillero v. U. S„ 2 Black, 17, 194, 17 L.Ed. 360. 

ALCOHOLIC BEVERAGE. The term is distin- 
guished from the term "intoxicating liquor," in 
that a beverage may be alcoholic in that it contains 
some alcohol, and yet not be intoxicating as de- 
fined in National Prohibition Act. Premier-Pabst 
Sales Co. v. McNutt, D.C.Ind., 17 F.Supp. 708, 714. 

Beer. Liquor Control Commission v. McGillis, 91 Utah, 
586, 65 P.2d 1 136, 1141. Ethyl alcohol, within tax statute. 
H. 0. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657, 
660. It is immaterial whether the liquor is suitable or 
desirable for beverage purposes, if it is prohibited by law 
and is in fact used as a beverage. Powell v. State, 179 Md. 
399, 18 A. 2d 587, 590, 591. But it must be drinkable. 
McChristy v. State, 138 Tex.Cr.R. 26, 133 S.W.2d 976, 977. 

ALCOHOLIC LIQUORS. "Alcoholic, spirituous and 
malt liquors" mean intoxicating liquors which can 
be used as a beverage, and which, when drunk to 
excess, will produce intoxication. Howard v. Acme 
Brewing Co., 143 Ga. 1, 83 S.E. 1096, 1097, Ann. 
Cas. 1917A, 91; F. W. Woolworth Co. v. State, 72 
Okl.Cr. 125, 113 P.2d 399, 403. 

The term includes raw alcohol. C. J. Lincoln Co. v. 
State, 122 Ark. 204, 183 S. W. 173, 174. Beer, ale, or wine 
in Selective Service Act, § 12 (50 U.S.C.A. § 226 note). 
U. S. v. Kinsel, D.C., 263 F. 141, 142. And lemon and 
vanilla extracts, made or used for beverage purposes, con- 
taining alcohol. Brandon v. State, 24 Ala.App. 289, 134 So. 
890, 891. But not specially denatured alcohol. M. H. Mc- 
Carthy & Co. v. Doran, D.C.Mass., 43 F.2d 659, 661. See 
Intoxicating Liquor. 

ALCOHOLISM. In medical jurisprudence, the 
pathological effect (as distinguished from physio- 
logical effect) of excessive indulgence in intoxi- 
cating liquors. 

A morbid condition resulting from the inordinate or 
excessive use of alcoholic beverages. Cochran v. Commis- 
sioner of Internal Revenue, C.C.A.4, 78 F.2d 176, 178. 

It is acute when induced by excessive potations at one 
time or in the course of a single debauch. An attack of 
delirium tremens and alcoholic homicidal mania are exam- 
ples of this form. It is chronic when resulting from the 
long-continued use of spirits in less quantities, as in the 
case of dipsomania. 


93 



ALCOVE 


ALCOVE ROOM. An "alcove room," within Tene- 
ment House Law N. Y. § 65, is a room with an. 
alcove. People on Complaint of Hickey v. White- 
low, Mag.Ct.N.Y., 166 N.Y.S. 141, 148. 

ALDERMAN. A judicial or administrative magis- 
trate. 

See Aldermannus. 

Originally the word was synonymous with "elder" or 
"senator," but was also used to designate an earl, and 
even a king. 

In American cities, one of a board of municipal officers 
next in order to the mayor. State v. Waterman, 95 Conn. 
414, 1 1 1 A. 623, 624; Board of Lights and Waterworks v. 
Dobbs, 151 Ga. 53, 105 S.E. 611, 612. The aldermen are 
generally a legislative body, having limited judicial pow- 
ers as a body, as in matters of internal police regulation, 
laying out and repairing streets, constructing sewers, and 
the like; though in many cities they hold separate courts, 
and have magisterial powers to a considerable extent. 

In English law, an associate to the chief civil magistrate 
of a corporate town or city. 

The word would seem to have been rather an appellation 
of honor, originally, than a distinguishing mark of office. 
Spelmar Gloss. 

ALDERMANNUS. L. Lat. An alderman. 

ALDERMANNUS CIVITATIS VEL BURGI. Aider- 
man of a city or borough, from which the modern 
office of alderman has been derived. T. Raym. 
435, 437. 

ALDERMANNUS COMITATUS. The alderman 
of the county. According to Spelman, he held an 
office intermediate between that of an earl and a 
sheriff. According to other authorities, he was 
the same as the earl. 1 Bl.Comm. 116. 

ALDERMANNUS HUNDRED! SEU WAPEN* 
TACHIL Alderman of a hundred or wapentake. 
Spelman. 

ALDERMANNUS REGIS. Alderman of the king. 
So called, either because he received his appoint- 
ment from the king or because he gave the judg- 
ment of the king in the premises allotted to him. 

ALDERMANNUS TOTIUS ANGLIZE. Alderman 
of all England. An officer among the Anglo- 
Saxons, supposed by Spelman to be the same with 
the chief justiciary of England in later times. 
Spelman. 

ALE-CONNER. In old English law, an officer 
appointed by the court-leet, sworn to look to the 
assise and goodness of ale and beer within the 
precincts of the leet. Kitch. Courts, 46; Whishaw. 
And to look to the assise of bread. Cowell. 

This officer is still continued in name, though 
the duties are changed or given up; 1 Crabb, Real 
Prop. 501. 

ALE-HOUSE. A place where ale is sold to be 
drunk on the premises where sold. 

ALE SILVER. A rent or tribute paid annually to 
the lord mayor of London, by those who sell ale 
within the liberty of the city. 

ALE- STAKE. A maypole or long stake driven 
into the ground, with a sign on it for the sale of 
ale. Cowell. 


ALEA. Lat. In the civil law, a game of chance 
or hazard. Dig. 11, 5, 1. See Cod. 3, 43. The 
chance of gain or loss in a contract. 

ALEATOR. Lat. (From alea, q. v., meaning 
dice). In the civil law, a gamester; one who 
plays at games of hazard. Dig. 11,5; Cod. 3, 
43. 

ALEATORY CONTRACT. A mutual agreement, 
of which the effects, with respect both to the 
advantages and losses, whether to all the parties 
or to some of them, depend on an uncertain event. 
Losecco v. Gregory, 108 La. 648, 32 So. 985. 

Contracts in which promise by one party is 
conditioned on fortuitous event. Southern Surety 
Co. v. MacMillan Co., C.C.A.Okl., 58 F.2d 541, 549. 

A contract, the obligation and performance of which 
depend upon an uncertain event, such as insurance, engage- 
ments to pay annuities, and the like. 

A contract is aleatory or hazardous when the perform- 
ance of that which is., one of its objects depends on an 
uncertain event, rt is certain when the thing to be done 
is supposed to depend on the will of the party, or when in 
the usual course of events it must happen in the manner 
stipulated. 

ALER A DIEU. L. Fr. In old piractice. To be 
dismissed from court; to go quit. Literally, "to 
go to God." 

ALER SANS JOUR. In old piractice, a phrase 
used to indicate the final dismissal of a case from 
court without continuance. "To go without day." 

ALEU. Fr. In French feudal law, an allodial 
estate, as distinguished from a feudal estate or 
benefice. 

ALFET. A cauldron into which boiling water was 
poured, in which a criminal plunged his arm up 
to the elbow, and there held it for some time, as 
an ordeal. Du Cange. 

ALFRED'S CODE. See Dombec, Domboc. 

ALGARUM MARIS. Probably a corruption of 
Lagccnum marls, lagan being a right, in the mid- 
dle ages, like jetsam and flotsam, by which goods 
thrown from a vessel in distress became the 
property of the king, or the lord on whose shores 
they were stranded. Spelman; Jacob; Du Cange. 

ALGO. Span. In Spanish law, property. White, 
Nov. Recop. b. 1, tit. 5, c. 3, § 4. 

ALIA. Lat. Other things. 

ALIA ENORMIA. Other wrongs. The name 
given to a general allegation of injuries caused 
by the defendant with which the plaintiff in an 
action of trespass under the common-law practice 
concluded his declaration. Archb.Crim.Pl. 694. 

ALIAMENTA. A liberty of passage, open way, 
water-course, etc., for the tenant's accommodation. 
Kitchen. 

ALIAS. Lat. Otherwise; equivalent of "alias 
dictus" or "otherwise called", indicating one was 
called by one or the other of two names, Corn- 


94 



ALIENA 


monwealth v. Liebowitz, 143 Pa.Super. 75, 17 A. 
2d 719, 721; at another time; in another manner; 
formerly. 

ALIAS DICTUS. "Otherwise called." Antone v. 
State, 49 Ariz. 168, 65 P.2d 646, 649, (shorter and 
more usual form, alias; see Kennedy v. People, 
39 N.Y. 245). Known by both those names, and is 
called one or the other. People v. Mellon, 171 
Misc. 171, 11 N.Y.S.2d 786, 790. A fictitious name 
assumed by a person is colloquially termed an 
"alias!' State v. Melson, 161 La. 423, 108 So. 794, 
795. 

ALIAS EXECUTION. One issued after first has 
been- returned without having accomplished its 
purpose. Richards-Conover Hardware Co. v. 
Sharp, 150 Kan. 506, 95 P.2d 360, 364. 

ALIAS SUBPOENA. One issued after the first 
has been returned without having accomplished 
its purpose. Richards-Conover Hardware Co. v. 
Sharp, 150 Kan. 506, 95 P.2d 360, 364. 

ALIAS SUMMONS. A summons issued when or- 
iginal has not produced its effect because defec- 
tive in form or manner of service, and when is- 
sued, which supersedes the first writ. Mansur v. 
Pacific Mut. Life Ins. Co. of California, 136 Mo. 
App. 726, 118 S.W. 1193, 1194; McGuire v. Mont- 
vale Lumber Co., 190 N.C. 806, 131 S.E. 274, 275. 

ALIAS TAX WARRANT. One issued after the 
first has been returned without having accomplish- 
ed its purpose. Richards-Conover Hardware Co. v. 
Sharp, 150 Kan. 506, 95 P.2d 360, 364. 

ALIAS WRIT. A second writ. Ditmar v. Beck- 
ham, Tex. Civ. App., 77 S.W.2d 893, 894. 

At common law "alias" as applied to an execution or fieri 
facias referred to new writ issued after original fieri facias 
was returned unproductive, but under the Code the term 
applies to an execution issued in lieu of a lost original. 
U-Driv-It System of Macon v. Lyles, 71 Ga.App. 70, 30 
S.E. 2d 111,1 14. A writ issued where one of the same kind 
has already been issued in the same cause without having 
been effective. Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d 
1020, 1021. It is used of all species of writs. 

Historically, the word "alias" refers to a former com- 
mand of the same sort, and it was part of a Latin sentence 
meaning, "We command you as we have before (sicut 
alias) commanded you." Schmidt v. Schmidt, 108 Mont. 
246, 89 P.2d 1020, 1021. 

ALIAS WRIT OF EXECUTION. One issued aft- 
er the first has been returned without having ac- 
complished its purpose. Richards-Conover Hard- 
ware Co. v. Sharp, 150 Kan. 506, 95 P.2d 360, 364. 

ALIBI. Lat. In criminal law, elsewhere; in an- 
other place. State v. Hubbard, 351 Mo. 143, 171 S. 
W.2d 701, 706. 

Means that at time of commission of crime charged in 
indictment defendant was at different place so remote or 
distant or under such circumstances that he could not have 
committed offense. State v. Parsons, 206 Iowa 390, 220 
N.W. 328, 330. It is a physical circumstance and derives 
its entire potency as a defense from fact that it involves 
the physical impossibility of guilt of accused. Gregg v. 
State, 69 Okl.Cr. 103, 101 P.2d 289, 296. Strictly it is not a 
defense though usually called such in criminal procedure. 
State v. Norman, 103 Ohio St. 541, 134 N.E. 474. 


ALIEN, n. A foreigner; one born abroad. 

A person who owes allegiance to a foreign 
government. De Cano v. State, 7 Wash. 2d 613, 
110 P.2d 627, 631, 633. 

In this country is a person born out of the United States 
and unnaturalized under our Constitution and laws, 2 Kent, 
Comm. 50. Caparell v. Goodbody, 132 N.J.Eq. 559, 29 A.2d 
563, 569. In England, one born out of the allegiance of the 
king. 

A native born Filipino living in the United States but 
not admitted to United States citizenship was an "alien". 
United States v. Gancy, D.C.Minn., 54 F.Supp. 755, 758, 
759. But term for immigration purposes would not apply 
to a Filipino seeking to enter the Territory of Hawaii or 
to a Filipino lawfully admitted to Hawaii who seeks entry 
therefrom into the United States. Id. Nor to citizens of 
the Philippine Islands of the Filipino race. De Cano v. 
State, 7 Wash. 2d 613, 110 P.2d 627, 631, 633. 

As to the effect of marriage on the status of women, 
whether they were originally aliens or citizens of the- 
United States, see 8 U.S.C.A. §i 9-368; U. S. ex rel. 
Ulrich v. Kellogg, 58 App.D.C. 360, 30 F.2d 984, 985, 71 
A.L.R. 1210. Petition of Peterson, D.C.Wash., 33 F.Supp. 
615, 616. Johansen v. Staten Island Shipbuilding Co., 272 
N.Y. 140, 5 N.E. 2d 68, 70. In re Pezzi, D.C.Cal., 29 F.2cl. 
999, 1001. 

ALIEN or ALIENE. v. To transfer or make 
over to another; to convey or transfer the prop- 
erty of a thing from one person to another; to- 
alienate. Usually applied to the transfer of lands 
and tenements. Co.Litt. 118; Cowell. 

ALIEN AMY. In international law, alien friend. 
An alien who is the subject or citizen of a foreign 
government at peace with our own. 

ALIEN AND SEDITION LAWS. Acts of congress 
of July 6 and July 14, 1798. See Whart. State Tr. 
22 . 

ALIEN ENEMY. In international law, an alien 
who is the subject or citizen of some hostile 
state or power. See Dyer, 2b; Co.Litt. 129b. A 
person who, by reason of owing a permanent or 
temporary allegiance to a hostile power, becomes, 
in time of war, impressed with the character of 
an enemy. See 1 Kent, Comm. 74; 2 Id. 63; Bell 
v. Chapman, 10 Johns., N.Y., 183; Dorsey v. Brig- 
ham, 177 111. 250, 52 N.E. 303, 42 L.R.A. 809. Sub- 
jects of a foreign state at war with United 
States. Caparell v. Goodbody, 132 N.J.Eq. 559, 29 
A. 2d 563, 569. 

Whether or not a person is an alien enemy depends, not 
on his nationality, but on the place in which he voluntarily 
resides or carries on business. Porter v. Freudenberg, 
[1915] 1 K.B. 857. See, also, Noble v. Great American Ins. 
Co., 194 N.Y.S. 60, 66, 200 App.Div. 773. 

ALIEN FRIEND. Subjects of a foreign state at 
peace with the United States. Caparell v. Good- 
body, 132 N.J.Eq. 559, 29 A.2d 563, 569, 570. Or 
citizen; an alien amy. Techt v. Hughes, 229 N.Y. 
222, 128 N.E. 185, 186, 11 A.L.R. 166. 

ALIEN NEE. An alien born, i. e., a person who, 
has been born an alien. 

ALIENA NEGOTIA EXACTO OFFICIO GERUN 
TUR. The business of another is to be conducted 
with particular attention. Jones, Bailm. 83; First 
Nat. Bank of Carlisle v. Graham, 79 Pa. 1 18, 21_ 
Am. Rep. 49. 


95 



ALIENABLE 


ALIENABLE. Proper to be the subject of aliena- 
tion or transfer. 

ALIENAGE. The condition or state of an alien. 

&LIENATE. To convey; to transfer the title to 
property. Co.Litt. 118b. Alien is very commonly 
used in the same sense. 1 Washb. Real Prop. 53. 

"Sell, alienate, and dispone" are the formal words of 
transfer in Scotch conveyances of heritable property. Bell. 

The term has a technical legal meaning, and any trans- 
fer of real estate, short of a conveyance of the title, is not 
an alienation of the estate. Masters v. Insurance Co., 1 1 
Barb., N.Y., 630. See, also, Nichols & Shepard Co. v. 
Dunnington, 118 Okl. 231, 247 P. 353, 355. But the word 
has been defined as to convey or transfer to another as 
title, property, or right, to part voluntarily with owner- 
ship of property, and, in widest sense, property is alien- 
ated when transferred from one person to another in any 
way; but generally alienating is restricted to transfer of 
title to property by act of owner, as distinguished from 
transfer effected entirely by operation of law. Delfelder v. 
Poston, 42 Wyo. 176, 293 P. 354, 361. 

ALIEN ATI O LICET PROHIBEATUR, CONSEN- 
SU TAMEN OMNIUM, IN QUORUM FAVOREM 
PROHIBITA EST, POTEST FIERI, ET QUILIBET 
POTEST RENUNCIARE JURI PRO SE INTRO- 
DUCTO. Although alienation be prohibited, yet, 
by the consent of all in whose favor it is prohibi- 
ted, it may take place; for it is in the power of 
any man to renounce a law made in his own 
favor. Co.Litt. 98. 

ALIENATIO REI PR 1 EFERTUR JURI ACCRE- 
SCENDI. Alienation is favored by the law rather 
than accumulation. Co.Litt. 185. 

ALIENATION. In real property law, the trans- 
fer of the property and possession of lands, tene- 
ments, or other things, from one person to an- 
other. Termes de la Ley. 

The term is particularly applied to absolute conveyances 
of real property. Conover v. Mutual Ins. Co., 1 N.Y. 290, 
294. The voluntary and complete transfer from one person 
to another. Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 89, 3 
A.L.R. 352; Chouteau v. Chouteau, 49 Okl. 105, 152 P. 373, 
376. Disposition by will. Contra, Postlethwaite v. Edson, 
102 Kan. 619, 171 P. 769, 773, L.R.A.1918D, 983. Leases, 
especially of Indians' allotted lands. Bailey v. King, 57 
Okl. 528, 157 P. 763, 764; Ashton v. Noble, 65 Okl. 45, 162 
P. 784, 785; Williams v. Hylan, 215 N.Y.S. 101, 106, 126 
Misc.Rep. 807. Every mode of passing realty by the act of 
the party, as distinguished from passing it by the opera- 
tion of law. Rathbun v. Allen, 63 R.I. 109, 7 A. 2d 273, 
275. But the term is inapplicable to mortgages. Worth- 
ington v. Tipton, 24 N.M. 89, 172 P. 1048, 1049. 

The act by which the title to real estate is voluntarily 
resigned by one person to another and accepted by the 
latter, in the forms prescribed by law. Cf. In re Ehr- 
hardt, U.S.D.C., 19 F.2d 406, 407 (bankruptcy proceedings). 

It is said to signify the wrongful transfer of property to 
another or the wrongful conversion of property for which 
an action of trover was maintainable at common law. 
Sauls v. Whitman, 171 Oki. 113, 42 P.2d 275, 280. 

In medical jurisprudence, a generic term de- 
noting the different kinds or forms of mental 
aberration or derangement. 

ALIENATION IN MORTMAIN. See Amortiza- 
tion; Mortmain. 

ALIENATION OF AFFECTIONS. The robbing of 
husband or wife of the conjugal affection, society, 
fellowship, and comfort which inheres in the nor- 


mal marriage relation. Young v. Young, 236 Ala. 
627, 184 So. 187, 190. 

Loss of consortium between spouses from wrongful acts 
of others. Young v. Young, 236 Ala. 627, 184 So. 187, 190. 
The deprivation of one spouse of the right to the aid, com- 
fort, assistance, and society of the other spouse in family 
relationships. Hargraves v. Ballou, 47 R.I. 186, 131 A. 643, 
645. 

ALIENATION OFFICE. In English practice, an 
office for the recovery of fines levied upon writs 
of covenant and entries. 

ALIENEE. One to whom an alienation, convey- 
ance, or transfer of property is made. See Alien- 
or. 

ALIENI GENERIS. Lat. Of another kind. 3 P. 
Wms. 247. 

ALIENI JURIS. Lat. Under the control, or sub- 
ject to the authority, of another person; e. g., an 
infant who is under the authority of his father 
or guardian; a wife under the power of her hus- 
band. The term is contrasted with Sui Juris, (q. 

u.). 

ALIENIGENA. One of foreign birth; an alien. 
7 Coke, 31. 

ALIENISM. The state, condition, or character of 
an alien. 2 Kent, Comm. 56, 64, 69. 

ALIENIST. One who has specialized in the study 
of mental diseases. State v. Reidell, 9 Houst., 
Del., 470, 14 A. 550, 552. Persons qualified by ex- 
perience, knowledge, and previous opportunities 
to express opinion as to defendant's mental con- 
dition at a particular time. People v. Norton, 138 
Cal.App. 70, 31 P.2d 809, 810. 

ALIENOR. He who makes a grant, transfer of 
title, conveyance, or alienation. Correlative of 
alienee. 

ALIENUS. Lat. Another's; belonging to an- 
other; the property of another. Alienus homo, 
another's man, or slave. Inst. 4, 3, pr. Aliena res, 
another's property. Bract, fol. 13b. 

ALIGNMENT. The act of laying out or adjusting 
a line. The state of being so laid out or adjusted. 
The ground plan of a railway or other road or 
work as distinguished from its profile or gradients. 
Village of Chester v. Leonard, 68 Conn. 495, 37 
A. 397. An adjustment to a line. Harner v. 
Monongalia County Court, 80 W.Va. 626, 92 S.E. 
781, 785. 

ALIKE. Similar to another. The term is not 
synonymous with "identical," which means "exact- 
ly the same." Carn v. Moore, 74 Fla. 77, 76 So. 
337, 340. 

ALIMENT. In Scotch law, to maintain, support, 
provide for; to provide with necessaries. As a 
noun, maintenance, support; an allowance from 
the husband's estate for the support of the wife. 
Paters. Comp. §§ 845, 850, 893. 


96 



ALIUNDE 


In civil law, food and other things necessary to 
the support of life; money allowed for the pur- 
pose of procuring these. Dig. 50, 16, 43. 

In common law, to supply with necessaries. 
Purcell v. Purcell, 3 Edw.Ch.N.Y. 194. 

ALIMENTA. Lat. In the civil law, aliments; 
things necessary to sustain life; means of sup- 
port, including food, (cibaria,) clothing, (vestitus,) 
and habitation, (habitatio.) Dig. 34, 1 , 6. 

ALDIENTOS. The Spanish term for support and 
maintenance. Escriche Diccionario. 

ALIMONY. Comes from Latin "alimonia" mean- 
ing sustenance, and means, therefore, the suste- 
nance or support of the wife by her divorced hus- 
band and stems from the common-law right of 
the wife to support • by her husband. Eaton v. 
Davis, 176 Va. 330, 10 S.E.2d 893, 897. Derived 
from Latin word "alere," meaning to nourish or 
sustain. Allowances which husband by court order 
pays wife for maintenance while they are sepa- 
rated or after they are divorced. Merriman v. 
Hawbaker, D.C.I11., 5 F.Supp. 432, 433. Or pend- 
ing a suit for divorce. And see Bowman v. Worth- 
ington, 24 Ark. 522; Lynde v. Lynde, 64 N.J.Eq. 
736, 52 A. 694, 58 L.R.A. 471. But in its strictly 
legal sense relates to the provisions made pen- 
dente lite. Warne v. Warne, 36 S.D. 573, 156 N. 
W. 60, 62. Compare Emerson v. Emerson, 120 
Md. 584, 87 A. 1033, 1035, holding that in the ab- 
sence of statute, in case of an absolute divorce the 
duty to support ceases and with it the right to 
alimony. 

Generally it is restricted to money unless otherwise 
authorized by statute. Lloyd v. Lloyd, 183 Ga. 751, 189 
S.E. 903, 904. But it may be such an allowance out of hus- 
band's estate. Davis v. Davis, 61 Okl. 275, 161 P. 190, 191. 
Equally applicable to all allowances, whether annual or 
in gross. Burrows v. Purple, 107 Mass. 432. 

It may continue during the joint lives of husband and 
wife, or so long as they live apart. Cohen v. Cohen, Md., 
174 Md. 61, 197 A. 564, 565, 566. But is essentially a dif- 
ferent thing from a division of the property of the parties. 
Mesler v. Jackson, Circuit Judge, 188 Mich. 195, 154 N.W. 
63, 65. Not being an "estate", nor the separate property 
of wife. Cizekv. Cizek, 69 Neb. 797, 99 N.W. 28. 

It does not partake of nature of damages or penalty for 
husband's misconduct. Kennard v. Kennard, 87 N.H. 320, 
179 A. 414, 419. Nor is it founded on contract, express or 
implied, but on husband's natural and legal duty to sup- 
port wife. Smith v. Smith, D.C.N.Y., 7 F.Supp. 490, 491. 

In its broad sense, it means also an award for the sup- 
port of a child or children. Schafer v. Schafer, 193 N.Y.S. 
43, 44, 118 Misc.Rep. 254; Brown v. Brown, 222 Mass. 415, 
111 N.E. 42, 43. And it includes provision for an educa- 
tion. Floyd v. Floyd, 91 Fla. 910, 108 So. 896, 898. 

Alimony in gross, or in a lump sum, is in the 
nature of a final property settlement, and hence 
in some jurisdictions is not included in the term 
"alimony," which in its strict or technical sense 
contemplates money payments at regular inter- 
vals. Parmly v. Parmly, 125 N.J.Eq. 545, 5 A.2d 
789, 791; 27 C.J.S. Divorce, § 235, p. 965. 

Alimony pendente lite is an allowance made 
pending a suit for divorce or separate mainte- 
nance including a reasonable allowance for prepa- 
ration of the suit as well as for support. Davis 
v. Davis, 15 Wash.2d 297, 130 P.2d 355, 359. Or 

Black's Law Dictionary Revised 4th Ed. -7 


pending an appeal. Robinson v. Robinson, N.J. 
Err. & App., 92 A. 94, 96, L.R.A. 1915B, 1071. 

Permanent alimony is a provision for the sup- 
port and maintenance of a wife during her life- 
time. In re Spencer, 83 Cal. 460, 23 P. 395, 17 
Am.St.Rep. 266. 

ALIO INTUITU. Lat. In a different view; under 
a different aspect. 4 Rob.Adm. & Pr. 151. With 
another view or object; with respect to another 
case or condition. 7 East, 558; 6 M. & S. 231. 
See Diverso Intuitu. 

ALIQUID CONCEDITUR NE INJURIA REMAN- 
EAT IMPUNITA, QUOD ALIAS NON CONCED- 
ERETUR. Something is (will be) conceded, to 
prevent a wrong remaining unredressed, which 
otherwise would not be conceded. Co.Litt. 197b. 

ALIQUID POSSESSIONIS ET NIHIL JURIS. 
Somewhat of possession, and nothing of right, 
(but no right) . 

A phrase used by Bracton to describe that kind of pos- 
session which a person might have of a thing as a guard- 
ian, creditor, or the like; and also that kind of possession 
which was granted for a term of years, where nothing 
could be demanded but the usufruct. Bract, fols. 39a, 
160a. 

ALIQUIS NON DEBET ESSE JUDEX IN PRO- 
PRIA CAUSA, QUIA NON POTEST ESSE JU- 
DEX ET PARS. A person ought not to be judge 
in his own cause, because he cannot act as judge 
and party. Co.Litt. 141; 3 Bl.Comm. 59. 

ALIQUOT. Strictly, contained in something else 
an exact number of times. But as applied to re- 
sulting trusts, "aliquot" is treated as meaning 
fractional. Fox v. Shanley, 94 Conn. 350, 109 A. 
249, 251. And means any definite interest. Hin- 
shaw v. Russell, 280 111. 235, 117 N.E. 406, 408. 

ALITER. Otherwise; as otherwise held or de- 
cided. 

ALIUD EST CELARE, ALIUD TACERE. To con- 
ceal is one thing; to be silent is another. Lord 
Mansfield, 3 Burr. 1910. 

ALIUD EST DISTINCTIO, ALIUD SEPARATIO. 
Distinction is one thing; separation is another. 
It is one thing to make things distinct, another 
thing to make them separable. 

ALIUD EST POSSIDERE, ALIUD ESSE IN 
POSSESSIONE. It is one thing to possess; it is 
another to be in possession. Hob. 163. 

ALIUD EST VENDERE, ALIUD VENDENTI 
CONSENTIRE. To sell is one thing; to consent 
to a sale (seller) is another thing. Dig. 50, 17, 
160. 

ALIUD EXAMEN. A different or foreign mode 
of trial. 1 Hale, Com. Law, 38. 

ALIUNDE, Lat. From another source; from 
elsewhere; from outside. 

Evidence aliunde. Evidence from outside, from 
another source. In certain cases a written in- 


97 



ALIUNDE 


strument may be explained by evidence aliunde, 
that is, by evidence drawn from sources exterior 
to the instrument itself, e. g., the testimony of a 
witness to conversations, admissions, or prelimi- 
nary negotiations. 

Evidence aliunde (i. e., from without the will) may be 
received to explain an ambiguity in a will. 1 Greenl. Ev. 
§ 291 . 

ALIUNDE RULE. A verdict may not be im- 
peached by evidence of juror unless foundation 
for introduction thereof is first made by compe- 
tent evidence aliunde, or from some other source. 
State v. Adams, 141 Ohio St. 423, 48 N.E.2d 861, 
863, 146A.L.R. 509. 

ALIUS. Lat. Other. The neuter form is aliud, 
something else; another thing. 

ALIVE. As respects birth, it means that child 
shall have an independent life of its own for some 
period, even momentarily, after birth. Evidenced 
by respiration or other indications of life, such as 
beating of heart and pulsation of arteries. Flem- 
ing v. Sexton, 172 N.C. 250, 90 S.E. 247, 249. Cf. 
Hydrostatic Test. Or heart tones in response to 
artificial respiration, or pulsation of umbilical 
cord after being severed. In re Stuertz' Estate, 
124 Neb. 149, 245 N.W. 412, 413. 

In respect of estate matters, a child en ventre 
sa mere is "born" and "alive" for all purposes for 
his benefit. In re Holthausen's Will, 175 Misc. 
1022, 26 N.Y.S.2d 140, 143. 

ALL. Means the whole of — used with a singular 
noun or pronoun, and referring to amount, quan- 
tity, extent, duration, quality, or degree. The 
whole number or sum of — used collectively, with 
a plural noun or pronoun expressing an aggre- 
gate. Every member of individual component of; 
each one of — used with a plural noun. In this 
sense, all is used generically and distributively. 
"All" refers rather to the aggregate under which 
the individuals are subsumed than to the individ- 
uals themselves. State v. Hallenberg- Wagner 
Motor Co., 341 Mo. 771, 108 S.W.2d 398, 401. See 
Both. 

ALL AMERICAN. Indicative of supremacy, su- 
periority, and distinction in the athletic world. 
R. W. Eldridge Co. v. Southern Handkerchief 
Mfg. Co., D.C.S.C., 23 F.Supp. 179, 182, 184, 185. 

ALL AND SINGULAR. All without exception. 
A comprehensive term often employed in convey- 
ances, wills, and the like, which includes the ag- 
gregate or whole and also each of the separate 
items or components. McClaskey v. Barr, C.C., 
54 Fed. 798. 

ALL CASES AT LAW. Within constitutional 
guaranty of jury trial, refers to common law ac- 
tions as distinguished from causes in equity and 
certain other proceedings. Breimhorst v. Beck- 
man, 227 Minn. 409, 35 N.W.2d 719, 734. 

ALL DISABILITY. Includes both total and par- 
tial disability caused by a permanent injury to the 
leg or arm, or resulting from or relating to the 


permanent injury, and embraces not only all in- 
capacity to labor, directly or indirectly arising 
from such permanent injury, but likewise cases of 
no incapacity at all. Bausch v. Fidler, 277 Pa. 
573, 121 A. 507. Includes pain, annoyance, incon- 
veniences, disability to work, and everything inci- 
dent to the permanent injury. Vanaskie v. Stev- 
ens Coal Co., 133 Pa. Super. 457, 2 A.2d 531, 532. 

ALL FAULTS. A sale of goods with "all faults" 
covers, in the absence of fraud on the part of the 
vendor, all such faults and defects as are not in- 
consistent with the identity of the goods as the 
goods described. Whitney v. Boardman, 118 Mass. 
242. 

ALL FOURS. Two cases or decisions which are 
alike in all material respects, and precisely similar 
in all the circumstances affecting their determina- 
tion, are said to be or to run on "all fours." 

ALL THE ESTATE. The name given in England 
to the short clause in a conveyance or other as- 
surance which purports to convey "all the estate, 
right, title, interest, claim, and demand" of the 
grantor, lessor, etc., in the property dealt with. 
Da y .Conv. 93. 

ALL THE MEMBERS. The provision of a church 
constitution that "all the members" can discharge 
their parish priest means that all shall have op- 
portunity to participate, but not that all mem- 
bers must attend the meeting or vote in the affirm- 
ative for the discharge of the priest. Stryjewski 
v. Panfil, 269 Pa. 568, 112 A. 764, 765. 

ALL — ADDENDUM. As respects patent on a 
tooth gearing, "all-addendum" and "all-dedendum" 
mean that the working faces of the teeth of one 
element are outside, and those of the other ele- 
ment inside, their respective "pitch circles" which 
refers to circles passing through the pitch point 
and coaxial with the axes of rotation of the inter- 
meshing gear wheels. In re Cook, Cust. & Pat. 
App., 103 F.2d 909, 911. 

ALLEGANS CONTRARIA NON EST AUDIEN- 
DUS. One alleging contrary or contradictory 
things (whose statements contradict each other) 
is not to be heard. 4 Inst. 279. Applied to the 
statements of a witness. 

ALLEGANS SUAM TURPIT 1 UDINEM NON EST 
AUDIENDUS. One who alleges his own infamy is 
not to be heard. 4 Inst. 279. 

ALLEGARI NON DEBUIT QUOD PROBATUM 
NON RELEVAT. That ought not to be alleged 
which, if proved, is not relevant. 1 Ch.Cas. 45. 

ALLEGATA. In Roman law, a word which the 
emperors formerly signed at the bottom of their 
rescripts and constitutions; under other instru- 
ments they usually wrote signata. or testata. 
Encyc. Lond. 

ALLEGATA ET PROBATA. Lat. Things alleged 
and proved. The allegations made by a party to a 
suit, and the proof adduced in their support. 
Crump v. State, 30 Ala.App. 241, 4 So.2d 188, 189. 


98 



ALLIANCE 


ALLEGATIO CONTRA FACTUM NON EST AD- 
MITTENDA. An allegation contrary to the deed 
(or fact) is not admissible. 

ALLEGATION. The assertion, declaration, or 
statement of a party to an action, made in a 
pleading, setting out what he expects to prove. 
Mathews v. Underpinning & Foundation Co., 17 N. 
J.Misc. 79, 4A.2d 788, 789. 

A material allegation in a pleading is one es- 
sential to the claim or defense. 

In ecclesiastical law, the statement of the facts 
intended to be relied on in support of the con- 
tested suit. 

In English ecclesiastical practice the word seems to 
designate the pleading as a whole ; the three pleadings are 
known as the allegations; and the defendant's plea is dis- 
tinguished as the defensive, or sometimes the responsive, 
allegation, and the complainant's reply as the rejoining 
allegation. 

ALLEGATION OF FACT. Generally narration 
of transaction by stating details according to their 
legal effect, and statement of right or liability 
flowing from certain facts is conclusion of law. 
Maylender v. Fulton County Gas & Electric Co., 
131 Misc. 514, 227 N.Y.S. 209, 217. 

ALLEGATION OF FACULTIES. A statement 
made by the wife of the property of her husband, 
in order to obtain alimony. Wright v. Wright, 3 
Tex. 168. See Faculties. 

ALLEGE. To state, recite, assert, or charge; to 
make an allegation. To affirm, assert, or declare. 
State v. Hostetter, Mo. Sup., 222 S.W. 750, 754. 

ALLEGED. Stated; recited; claimed; asserted; 
charged. Lynn v. Nichols, 122 Misc. Rep. 170, 202 
N.Y.S. 401, 406. 

ALLEGIANCE. Obligation of fidelity and obedi- 
ence to government in consideration for protection 
that government gives. U. S. v. Kuhn, D.C.N.Y., 
49 F.Supp. 407, 414. 

The citizen or subject owes an absolute and permanent 
allegiance to his government or sovereign until he becomes 
a citizen or subject of another government or another sov- 
ereign. The alien owes a local and temporary allegiance 
during period of his residence. U. S. v. Wong Kim, Ark., 
169 U.S. 649, 18 Sup.Ct. 456, 42 L.Ed. 890. 

"The tie or ligamen which binds the subject [or citizen] 
to the king [or government] in return for that protection 
which the king [or government] affords the subject, [or 
citizen."] 1 Bl.Comm. 366. It consists in "a true and 
faithful obedience of the subject due to his sovereign," 7 
Coke, 4b, and is a comparatively modern corruption of 
ligeance (ligeantia), which is derived from liege (ligius), 
meaning absolute or unqualified. It signified originally 
liege fealty, 1. e. absolute and unqualified fealty. 18 
L. Q. Rev. 47. 

In Norman French, alleviation; relief ; redress. 
Kelham. 

Acquired allegiance, is that binding a natural- 
ized citizen. 

Local or actual allegiance, is that measure of 
obedience due from a subject of one government 
to another government, within whose territory he 
is temporarily resident. From this are excepted 
foreign sovereigns and their representatives, naval 


and armed forces when permitted to remain in or 
pass through the country or its waters. 

Natural allegiance. In English law, that kind 
of allegiance which is due from all men bom with- 
in the king's dominions, immediately upon their 
birth, which is intrinsic and perpetual, and- cannot 
be divested by any act of their own. 1 Bl.Comm. 
369; 2 Kent, Comm. 42. In American law, the al- 
legiance due from citizens of the United States 
to their native country, and also from naturalized 
citizens, and which cannot be renounced without 
the permission of government, to be declared by 
law. 2 Kent, Comm. 43-49. 

It is said to be due to the king in his political, not his 
personal, capacity; L. R. 17 Q. B. D. 54, quoted in U. S. 
v. Wong Kim, Ark., 169 U.S. 663, 18 Sup.Ct. 456, 42 L.Ed. 
890; and so in the United States "it is a political obliga- 
tion" depending not on ownership of land, but on the 
enjoyment of the protection of government; Wallace v. 
Harmstad, 44 Pa. 492; and it "binds the citizen to the 
observance of all laws" of his own sovereign; Adams v. 
People, 1 N.Y. 173. 

ALLEGIARE. To defend and clear one's self; 
to wage one's own law. An archaic word which 
simply means to define or justify by due course of 
law. State v. Hostetter, Mo., 222 S.W. 750. 

ALLEGING DIMINUTION. The allegation in an 
appellate court, of some error in a subordinate 
part of the nisi prius record. See Diminution. 

ALLEN CHARGE. An instruction advising jurors 
to have deference for each other's views, that they 
should listen, with a disposition to be convinced, 
to each other's argument, deriving its name from 
the case of Allen v. United States, 164 U.S. 492, 17 
S.Ct. 154, 41 L.Ed. 528, wherein the instruction was 
approved. Coupe v. United States, 72 App.D.C. 86, 

1 13 F.2d 145, 149; Green v. U. S., 309 F.2d 852. 
Variously called dynamite charge, shotgun instruc- 
tion, third degree instruction. 

ALLERGY. A susceptibility to disease. Vogt v. 
Ford Motor Co., Mo.App., 138 S.W.2d 684, 688. 

ALLEVIARE. L. Lat. In old records, to levy or 
pay an accustomed fine or composition; to redeem 
by such payment. Cowell. 

ALLEY. A narrow way designed for the special 
accommodation of the property it reaches. Atchi- 
son, T. & S. F. Ry. Co. v. City of Chanute, 95 Kan. 
161, 147 P. 836, 837; Wooldridge v. Pacific Coast 
Coal Co., Wash., 155 P.2d 1001, 1003. 

ALLIANCE. The relation or union between per- 
sons or families contracted by intermarriage; 
affinity. 

In international law, a union or association of 
two or more states or nations, formed by league 
or treaty, for the joint prosecution of a war 
(offensive alliance), or for their mutual assistance 
and protection in repelling hostile attacks (de- 
fensive alliance). The league or treaty by which 
the association is formed. The act of confederat- 
ing, by league or treaty, for the purposes men- 
tioned. 

The term Is also used in a wider sense, embracing unions 
for objects of common interest to the contracting parties, 


99 



ALLISION 


as the "Holy Alliance" entered into in 1815 by Prussia, 
Austria and Russia for the purpose of counteracting the 
revolutionary movement in the interest of political liberal- 
ism. 

ALLISION. The running of one vessel into or 
against another, as distinguished from a collision, 
i. e., the running of two vessels against each other. 
But this distinction is not very carefully observed. 

ALLOCABLE. Synonymous with "distributable". 
In analyzing accounts, the breaking down of a 
lump sum charged or credited to one account into 
several parts to be charged or credited to other 
accounts. Fleming v. Commissioner of Internal 
Revenue, C.C.A.Tex., 121 F.2d 7, 9. 

ALLOCATE. Power to allocate critical materials 
included power to distribute, to assign, to allot. 
Gallagher's Steak House v. Bowles, C.C.A.N.Y., 
142 F.2d 530, 534. To ration or withhold from 
private consumption. State ex rel. Guide Manage- 
ment Corp. v. Alexander, 223 Ind. 221, 59 N.E.2d 
169, 172. 

ALLOCATION. An allowance made upon an ac- 
count in the English exchequer. Cowell. Placing 
or adding to a thing. Encyc. Lond. 

Assignment or allotment. Jacobson v. Bowles, 
D.C.Tex., 53 F.Supp. 532, 534. 

ALLOCATIONE FACIENDA. In old English 
practice, a writ for allowing to an accountant such 
sums of money as he hath lawfully expended in 
his office; directed to the lord treasurer and 
barons of the exchequer upon application made. 
Jacob. 

ALLOCATO COMITATU. In old English practice, 
in proceedings in outlawry, when there were but 
two county courts holden between the delivery of 
the writ of exigi facias to the sheriff and its re- 
turn, a special exigi facias, with an allocato 
comitatu issued to the sheriff in order to complete 
the proceedings. See Exigent. 

ALLOCATUR. Lat. It is allowed. A word form- 
erly used to denote that a writ or order was al- 
lowed. 

A word denoting the allowance by a master or prothono- 
tary of a bill referred for his consideration, whether touch- 
ing costs, damages, or matter of account. Lee, Diet. 

A special allocatur is the special allowance of a writ 
(particularly a writ of error) which is required in some 
particular cases. 

ALLOCATUR EXIGENT. A species of writ an- 
ciently issued in outlawry proceedings, on the re- 
turn of the original writ of exigent. 1 Tidd, Pr. 
128. See Exigent. 

ALLOCUTION. Formality of court's inquiry of 
prisoner as to whether he has any legal cause to 
show why judgment should not be pronounced 
against him on verdict of conviction. Archb.Crim. 
PL 173; State v. Pruitt, Mo., 169 S.W.2d 399, 400. 

ALLOCUTUS. See Allocution. 

ALLODARII. Owners of allodial lands. Owners 
of estates as large as a subject may have. Co. 
Litt 1; Bac. Abr. "Tenure," A. 


ALLODIAL. Free; not holden of any lord or 
superior; owned without obligation of vassalage 
or fealty; the opposite of feudal. Barker v. 
Dayton, 28 Wis. 384; Wallace v. Harmstad, 44 Pa. 
499. 

ALLODIUM. Land held absolutely in one's own 
right, and not of any lord or superior; land not 
subject to feudal duties or burdens. 

An estate held by absolute ownership, without 
recognizing any superior to whom any duty is 
due on account thereof. 1 Washb.Real Prop. 16. 
McCartee v. Orphan Asylum, 9 Cow., N.Y., 511, 

18 Am. Dec. 516. 

ALLOGRAPH. A writing or signature made for 
a person by another; opposed to autograph. 

ALLONGE. A piece of paper annexed to a bill of 
exchange or promissory note, on which to write 
endorsements for which there is no room on the 
instrument itself. Pardessus, n. 343; Story, Prom. 
Notes, §§ 121, 151; Fountain v. Bookstaver, 141 
111. 461, 31 N.E. 17; Bergmannv. Puhl, 195 Wis. 
120, 217 N.W. 746, 748, 56 A.L.R. 915. 

ALLOPATHIC PRACTICE. The ordinary method 
of practicing medicine as adopted and taught by 
the great body of physicians. Bradbury v. Bardin, 
34 Conn. 452, 453, 35 Conn. 577. Also, and more 
properly, that method of combatting disease by 
the use of remedies producing effects different 
from those of the disease being treated; — opposed 
to homeopathy. 

ALLOT. To apportion, distribute; to divide prop- 
erty previously held in common among those en- 
titled, assigning to each his ratable portion, to be 
held in severalty; to set apart specific property, 
a share of a fund, etc., to a distinct party. Millet 
v. Bilby, 110 Okl. 241, 237 P. 859, 861. 

In the law of corporations, to allot shares, debentures, 
etc., is to appropriate them to the applicants or persons 
who have applied for them; this is generally done by send- 
ing to each applicant a letter of allotment, informing him 
that a certain number of shares have been allotted to him. 
Sweet. 

ALLOTMENT. A share or portion; that which is 
allotted; apportionment, division; the distribu- 
tion of shares in a public undertaking or corpora- 
tion. Reuter v. Reuter's Succession, 206 La. 474, 

19 So. 2d 209, 212. Assignment. Pace v. Eoff, Tex. 
Com.App., 48 S.W.2d 956, 963. Partition; the 
distribution of land under an enclosure act. The 
term ordinarily and commonly used to describe 
land held by Indians after allotment, and before 
the issuance of the patent in fee that deprives 
the land of its character as Indian country. Estes 
v. U. S., C.C.A., 225 F. 980, 981; Harris v. Gray- 
son, 90 Okl. 147, 216 P. 446, 449. See Allottee. 

ALLOTMENT CERTIFICATE. A document is- 
sued to an applicant for shares in a company or 
public loan announcing the number of shares 
allotted or assigned and the amounts and due 
dates of the calls or different payments to be 
made on the same. An "allotment certificate," 
when issued to an enrolled member of the Five 
Civilized Tribes of the Indian Territory, is an 


100 



ALLUVIO 


adjudication of the special tribunal empowered to 
decide the question that the party to whom it 
issues is entitled to the land, and it is a convey- 
ance of the right to this title to the allottee. 
Bowen v. Carter, 42 Okl. 565, 144 P. 170, 173. 

ALLOTMENT NOTE. In English law, a writing 
by a seaman, whereby he makes an assignment of 
part of his wages in favor of his wife, father or 
mother, grandfather or grandmother, brother or 
sister. Motley & Whitley. 

ALLOTMENT SYSTEM. Designates the practice 
in England of dividing land in small portions for 
cultivation by agricultural laborers and other 
cottagers at their leisure, and after they have per- 
formed their ordinary day's work. Wharton. 

ALLOTMENT WARDEN. By the English general 
inclosure act, 1845, § 108, when an allotment for 
the laboring poor of a district has been made on 
an inclosure under the act, the land so allotted is 
to be under the management of the incumbent 
and church warden of the parish, and two other 
persons elected by the parish, and they are to be 
styled "the allotment wardens" of the parish. 
Sweet. 

ALLOTTEE. One to whom an allotment is made, 
who receives a ratable share under an allotment; 
a person to whom land under an inclosure act or 
shares in a public undertaking are allotted. 

An "allottee," as the word is used in the act of April 21, 
1904 (chapter 1402, 33 Stat. 189-204), is one, generally an 
Indian, freedman, or adopted citizen of a tribe of Indians, 
to whom a tract of land out of a common holding has been 
given by, or under the supervision of, the United States. 
Lynch v. Franklin, 37 Okl. 60, 130 P. 599, 600. The word 
does not include such allottee's heirs. Bradley v. Goddard, 
45 Oki. 77, 145 P. 409, 410. 

ALLOW. The word has no rigid or precise mean- 
ing, but its import varies according to circum- 
stances or context in connection with which it 
is used. It may mean bestow, assign, to any one 
as his right or due, to accord, or to imply discre- 
tion, or unqualified and definite promise to do 
some specified thing. Dunlop Sand & Gravel Cor- 
poration v. Hospelhorn, 172 Md. 279, 191 A. 701, 
706. To approve of, accept as true, approve, ad- 
mit, concede, adopt, or fix. Headford Bros. & 
Hitchins Foundry Co. v. Associated Manufac- 
turers Corporation of America, 224 Iowa 1364, 278 
N.W. 624, 628. To grant something as a deduc- 
tion or an addition; to abate or deduct; as, to 
allow a sum for leakage. Pittsburgh Brewing Co. 
v. Commissioner of Internal Revenue, C.C.A.3, 
107 F.2d 155, 156. To grant, or permit; as to al- 
low an appeal or a marriage; to allow an account 
or claim. Also to give a fit portion out of a larger 
property or fund. Thurman v. Adams, 82 Miss. 
204, 33 So. 944. To sanction, either directly or 
indirectly, as opposed to merely suffering a thing 
to be done. People v. Duncan, 22 Cal.App. 430, 
134 P. 797, 798; to acquiesce in. Luckie v. Dia- 
mond Coal Co., 41 Cal.App. 468, 183 P. 178, 181; 
Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P. 
1125, 1129. To suffer, to tolerate; Gregory v. U. 
S., 17 Blatchf. 325, Fed. Cas. No. 5, 803; to fix; 


Hinds v. Marmolejo, 60 Cal. 229. To substitute. 
Glenn v. Glenn, 4 1 Ala. 57 1 . Intent in wills; and 
an equivalent of I will; Ramsey v. Hanlon, C.C. 
Pa., 33 F. 425. 

ALLOWANCE. A deduction, an average pay- 
ment, a portion assigned or allowed; the act of 
allowing. See Stone v. State, 197 Ala. 293; 72 
So. 536, 537; Sawyer v. U. S„ C.C.A., 10 F.2d 416, 
421. For "Family," see that title. 

In army terminology, ordinarily refers to extra and 
special items in addition to regular compensation. United 
States v. Jackson, S.C., 302 U.S. 628, 58 S.Ct. 390, 392, 82 
L. Ed. 488. 

As distinguished from a "salary," which is a fixed com- 
pensation, decreed by authority and for permanence, and 
is paid at stated intervals, and depends upon time, and not 
the amount of the services rendered, "allowance" is a 
variable quantity. Blaine County v. Pyrah, 32 Idaho, 111, 
178 P. 702, 703. 

Not synonymous with "alimony". Warne v. Warne, 36 
S.D. 573, 156 N.W. 60, 62. 

Special allowances. In English practice, in tax- 
ing the costs of an action as between party and 
party, the taxing officer is, in certain cases, em- 
powered to make special allowances; i. e., to al- 
low the party costs which the ordinary scale 
does not warrant. Sweet. 

ALLOWANCE PENDENTE LITE. In the English 
chancery division, where property which forms 
the subject of proceedings is more than sufficient 
to answer all claims in the proceedings, the court 
may allow to the parties interested the whole or 
part of the income, or (in the case of personalty) 
part of the property itself. St. 15 & 16 Viet. c. 86, 
§ 57; Daniell, Ch.Pr. 1070. 

ALLOWED CLAIM. Against an estate it is a debt 
or charge which is valid in law and entitled to 
enforcement. Commissioner of Internal Revenue 
v. Lyne, C.C.A.l, 90 F.2d 745, 747. 

ALLOY. An inferior or cheaper metal mixed 
with gold or silver in manufacturing or coining. 
As respects coining, the amount of alloy is fixed 
by law, and is used to increase the hardness and 
durability of the coin. 

A compound of two or more metals. Treibacher-Chethis- 
che Werke Gesellschaft mit Beschrankter Haftung v. Roes- 
sler & Hasslacher Chemical Co., C.C.A.N.Y., 219 F. 210, 21 1. 
A mixture or combination of metals while in state of 
fusion. Pittsburgh Iron 8s Steel Foundries Co. v. Seaman- 
Sleeth Co., D.C.Pa., 236 F. 756, 757; Treibacher Chemische 
Werke Gesellschaft mit Beschrankter Haftung v. Roessler 
& Hasslacher Chemical Co., D.C.N.Y., 214 F. 410, 412. 

ALLOYNOUR. L. Fr. One who conceals, steals, 
or carries off a thing privately. Britt, c. 17. See 
Eloigne. 

ALLUVIO MARIS. Lat. In the civil and old 
English law, the washing up of the sea; the soil 
thus formed; formation of soil or land from the 
sea; maritime increase. Hale, Anal. § 8. "Al- 
luvio marts is an increase of the land adjoining, 
by the projection of the sea, casting up and adding 
sand and slubb to the adjoining land, whereby it 
is increased, and for the most part by insensible 
degrees." Hale, de Jure Mar. pt. 1, c . 6. 


101 



ALLUVION 


ALLUVION. That increase of the earth on a 
shore or bank of a stream or the sea, by the force 
of the water, as by a current or by waves, which 
is so gradual that no one can judge how much is 
added at each moment of time. Inst. 1, 2, t. 1, § 
20. Ang. Water Courses, 53. Jefferis v. East 
Omaha Land Co., 134 U.S. 178, 10 Sup.Ct. 518, 33 
L.Ed. 872. Willett v. Miller, 176 Okl. 278, 55 P.2d 
90, 92. "Accretion" denotes the act. However, 
the terms are frequently used synonymously. 
Katz v. Patterson, 135 Or. 449, 296 P. 54, 55. 
Avulsion is sudden and perceptible. St. Clair 
County v. Lovingston, 23 Wall. 46, 23 L.Ed. 59. 
See Accretion; Avulsion. 

ALLY. A nation which has entered into an al- 
liance with another nation. 1 Kent, Comm. 69." 

A citizen or subject of one of two or more al- 
lied nations. Siemund v. Schmidt, Mun.Ct.N.Y., 
168 N.Y.S. 935. 

ALMANAC. A publication, in which is recounted 
the days of the week, month, and year, both com- 
mon and particular, often distinguishing the fasts, 
feasts, terms, etc., from the common days by prop- 
er marks, pointing out also the several changes 
of the moon, tides, eclipses, etc. 

ALMARIA. The archives, or, as they are some- 
times styled, muniments of a church or library. 

ALMESFEOH. In Saxon law, alms-fee; alms- 
money. Otherwise called "Peter-pence." Cowell. 

ALMOIN. Alms; a tenure of lands by divine 
service. See Frankalmoigne. 

ALMONER. One charged with the distribution 
of alms. The office was first instituted in religious 
houses and although formerly one of importance 
is now in England almost a sinecure. 

ALMOXARIFAZGO. In Spanish law, a general 
term, signifying both export and import duties, 
as well as excise. 

ALMS. Charitable donations. Any species of 
relief bestowed upon the poor. That which is 
given by public authority for the relief of the 
poor. 

ALMS FEE. Peter-pence (or Peter's pence), 
which see. 

ALMSHOUSE. A house for the publicly sup- 
ported paupers of a city or county. People v. 
City of New York, 36 Hun, N.Y., 311. In England 
an almshouse is not synonymous with a work- 
house or poorhouse, being supported by private 
endowment. 

It may be a public institution kept up by public reve- 
nues, or it may be an institution maintained by private 
endowment and contributions, where the indigent, sick, 
and poor are cared for without cost to themselves. State 
Board of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837, 
839. 

ALNAGER, or ULNAGER. A sworn officer of the 
king whose duty it was to look to the assise of 
woolen cloth made throughout the land, and to 


the putting on the seals for that purpose ordained, 
for which he collected a duty called "alnage." 
Cowell; Termes de la Ley. 

ALNETUM. In old records, a place where alders 
grow, or a grove of alder trees. Doomsday Book; 
Co. Lift. 4b. 

ALOD, Alode, Alodes, Alodis. L. Lat. In feudal 
law, old forms of alodium or allodium (q. u.). 

A term used in opposition to feodum or fief, which 
means property, the use of which was bestowed upon 
another by the proprietor, on condition that the grantee 
should perform certain services for the grantor, and upon 
the failure of which the property should revert to the orig- 
inal possessor. See 1 Poll. & Maitl. 45. 

ALODIAN. Sometimes used for anodial, but not 
well authorized. Cowell. 

ALOD I ARII. See Allodaril. 

ALONE. Apart from others; singly; sole. Sal- 
em Capital Flour Mills Co. v. Water-Ditch & Ca- 
nal Co., C.C.Or., 33 Fed. 154. 

ALONG. Lengthwise of, implying motion or at 
or near, distinguished from across. Nicolai v. 
Wisconsin Power 8s Light Co., 227 Wis. 83, 277 
N.W. 674, 678. By, on, up to, or over, according 
to the subject-matter and context. State v. 
Downes, 79 N.H. 505, 1 12 A. 246; Sioux City 
Bridge Co. v. Miller, C.C.A., 12 F.2d 41, 48. The 
term does not necessarily mean touching at all 
points; Com. v. Franklin, 133 Mass. 569; nor does 
it necessarily imply contact, Watts v. City of Win- 
field, 101 Kan. 470, 168 P. 319, 321. 

ALSO. Besides; as well; in addition; likewise; 
in like manner; similarly; too; withal. West 
Jersey Trust Co. v. Hayday, 124 N.J.Eq. 85, 199 A. 
407, 411. Some other thing; including; further; 
furthermore; in the same manner; moreover; 
nearly the same as the word "and" or "likewise." 
Schilling v. Central California Traction Co., 1 P. 
2d 53,55, 115 Cal.App. 30. 

The word imports no more than "item" and may mean 
the same as "moreover" ; but not the same as "in like 
manner" ; Evans v. Knorr, 4 Rawle (Pa.) 68; nor is it 
synonymous with "other," City of Ft. Smith v. Gunter, 
106 Ark. 371, 154 S.W. 181, 183. It may be (1) the begin- 
ning of an entirely different sentence, or (2) a copulative 
carrying on the sense of the immediately preceding words 
into those immediately succeeding. Stroud, Jud. Diet., 
citing 1 Jarm. 497 n. ; 1 Salk. 239; Security State Bank v. 
Jones, 121 Kan. 396, 247 P. 862, 863. 

ALT. In Scotch practice, an abbreviation of 
Alter, the other; the opposite party; the defend- 
er. 1 Broun, 336, note. 

ALTA PRODITIO. L. Lat. In old English law, 
high treason. 4 Bl.Comm. 75. See High Treason. 

ALTA VIA. L. Lat. In old English law, a high- 
way; the highway. 1 Salk. 222. Alta via regia; 
the king's highway; "the king's high street." 
Finch, Law, b. 2, c. 9. 

ALTARAGE. In ecclesiastical law, offerings 
made on the altar; all profits which accrue to 
the priest by means of the altar. Ayliffe, Parerg. 
61. 


102 



ALTERNATIVE 


ALTENHEIM. A German word meaning "home 
for old people." German Pioneer Verein v. Mey- 
er, 70 N.J.Eq. 192, 63 A. 835. 

ALTER. To make a change in; to modify; to 
vaiy in some degree; to change some of the ele- 
ments or ingredients or details without substitut- 
ing an entirely new thing or destroying the iden- 
tity of the thing affected. Davis v. Campbell, 93 
Iowa, 524, 61 N.W. 1053. To change partially. 
Cross v. Nee, D.C.Mo., 18 F.Supp. 589, 594. To 
change in one or more respects, but without de- 
struction of existence or identity of the thing 
changed; to increase or diminish. Kraus v. 
Kraus, 301 Ill.App. 606, 22 N.E.2d 862. See Al- 
teration; Change. 

To change may import the substitution of an entirely 
different thing, while to alter is to operate upon a subject- 
matter which continues objectively the same while modi- 
fied in some particular. To "amend" implies that the 
modification made in the subject improves it, which is not 
necessarily the case with an alteration. See Ex parte Woo 
Jan, D.C.Ky., 228 F. 927, 940. 

But "alter" is sometimes used synonymously with 
"change," Board of Sup'rs of Yavapai County v. Stephens, 
20 Ariz. 115, 177 P. 261, 264, and with "enlarge," City of 
Jamestown v. Pennsylvania Gas Co., C.C.A.N.Y., 1 F.2d 
871, 883. 

The other; the opposite party. See Alt, 

ALTER EGO. Second self. 3 C.J.S. Alter Ego. 

Theory that subordinate or servient corporation may be 
controlled by superior or dominant corporation, so that 
dominant corporation may be held liable for subordinate 
corporation's negligence. Barnes v. Liebig, 146 Fla. 219, 1 
So.2d 247, 253. 

To establish the "alter ego" doctrine, it must be shown 
that the stockholders disregarded the entity of the corpo- 
ration, made corporation a mere conduit for the transac- 
tion of their own private business, and that the separate 
individualities of the corporation and its stockholders in 
fact ceased to exist. Sefton v. San Diego Trust 8s Savings 
Bank, Cal.App., 106 P.2d 974, 984. 

The doctrine of "alter ego" does not create assets for 
or in corporation, but it simply fastens liability on the 
individual who uses the corporation merely as an instru- 
mentality in conducting his own personal business, and 
that liability springs from fraud perpetrated not on the 
corporation, but on third persons dealing with corporation. 
Garvin v. Matthews, 193 Wash. 152, 74 P.2d 990, 992. 

A new corporation taking over all of mortgaged assets of 
old corporation in exchange for all of old corporation's 
capital stock and continuing to operate business formerly 
operated by old corporation was "alter ego" of old corpo- 
ration so as to be obligated to pay annual patent royalty 
which old corporation was required to pay, notwithstand- 
ing that old corporation retained title to mortgaged assets. 
Dummer v. Wheeler Osgood Sales Corp., 198 Wash. 381, 88 
P.2d453, 458. 

ALTERATION. Variation; changing; making 
different. A change of a thing from one form or 
state to another; making a thing different from 
what it was without destroying its identity. Paye 
v. City of Grosse Pointe, 279 Mich. 254, 271 N.W. 
826, 827. See Alter. 

As applied to buildings, it is a change or substitution in 
a substantial particular of one part of a building for a 
building different in that particular; a change or changes 
within the superficial limits of an existing structure; an 
installation that becomes an integral part of the building 
and changes its structural quality; a substantial change 
therein; a varying or changing the form or nature of such 
building without destroying its identity. Paye v. City of 
Grosse Pointe, 279 Mich. 254, 271 N.W. 826, 827. 


Alteration of highway means change of course of exist- 
ing highway, leaving it substantially the same highway as 
before, but with its course in some respects changed. Hue- 
ning v. Shenkenberg, 208 Wis. 177, 242 N.W. 552, 553. 

An alteration is an act done upon the instru- 
ment by which its meaning or language is 
changed. If what is written upon or erased from 
the instrument has no tendency to produce this 
result, or to mislead any person, it is not an al- 
teration. Oliver v. Hawley, 5 Neb. 444. 

An alteration is said to be material when it af- 
fects, or may possibly affect, the rights of the 
persons interested in the document. 

Language different in legal effect, or change in rights, 
interests, or obligations of parties. Bank of Moberly v. 
Meals, 316 Mo. 1158, 295 S.W. 73, 77; Commercial Credit 
Co. v. Giles, Tex.Civ.App., 207 S.W. 596, 598. It introduces 
some change into instrument's terms, meaning, language, 
or details. See U. S. v. Sacks, 257 U.S. 37, 42 S.Ct. 38, 39, 
66 L. Ed. 118. Strictly speaking, it is some material change 
on face of instrument by one of the parties thereto with- 
out consent of the other, Johnston v. DePuy, 15 N.J.Misc. 
94, 188 A. 742, 743; since a mutual agreement of parties 
concerned creates a new agreement. Leake, Cont. 430. If 
performed by a mere stranger, it is more technically 
described as a spoliation or mutilation. Knox v. Horne, 
Tex.Civ.App., 200 S.W. 259, 260; Bercot v. Velkoff, 111 Ind. 
App. 323, 41 N.E.2d 686, 692. The term is not properly 
applied to any change which involves the substitution of a 
practically new document. Kempner v. Simon, 195 N.Y.S. 
333, 334, 1 19 Misc.Rep. 60. And it should in strictness be 
reserved for the designation of changes in form or lan- 
guage, and not used with reference to modifications in 
matters of substance. The term is also to be distinguished 
from "defacement." Too, if what is done simply takes 
away what was given before, or a part of it under a will, it 
is a revocation; but if it gives something in addition or in 
substitution, then it is an alteration. Appeal of Miles, 68 
Conn. 237, 36 A. 39, 36 L.R.A. 176. 

ALTERCATION. Warm contentions in words, 
dispute carried on with heat or anger, contro- 
versy, wrangle, wordy contest. Ivory v. State, 
128 Tex.Cr.R. 408, 81 S.W.2d 696, 698. 

ALTERIUS CIRCUMVENTIO ALU NON PRIE- 
BET ACTIONEM. The deceiving of one person 
does not afford an action to another. Dig. 50, 17, 
49. 

ALTERNAT. A usage among diplomatists by 
which the rank and places of different powers, 
who have the same right and pretensions to pre- 
cedence, are changed from time to time, either in 
a certain regular order or one determined by 
lot. In drawing up treaties and conventions, for 
example, it is the usage of certain powers to al- 
ternate, both in the preamble and the signatures, 
so that each power occupies, in the copy intended 
to be delivered to it, the first place. Wheat. Int. 
Law, § 157. 

ALTERNATE LEGACY. See Legacy. 

ALTERNATIM. L. Lat. Interchangeably. Litt. 
§ 371; Townsh.Pl. 37. 

ALTERNATIVA PETITIO NON EST AUDIEN- 
DA. An alternative petition or demand is not to 
be heard. 5 Coke, 40. 

ALTERNATIVE. One or the other of two things; 
giving an option or choice; allowing a choice 
between two or more things or acts to be done. 
See Malone v. Meres, 91 Fla. 709, 109 So. 677, 693. 



ALTERNATIVE 


ALTERNATIVE CONTRACT. A contract whose 
terms allow of performance by the doing of either 
one of several acts at the election of the party 
from whom performance is due. Crane v. Peer, 
43 N.J.Eq. 553, 4 A. 72. 

ALTERNATIVE JUDGMENT. See Judgment. 

ALTERNATIVE OBLIGATION. An obligation al- 
lowing the obligor to choose which of two things 
he will do, the performance of either of which 
will satisfy the instrument. A promise to deliv- 
er a certain thing or to pay a specified sum of 
money is an example of this kind of obligation. 

ALTERNATIVE PLEADING. A pleading alleg- 
ing substantive facts so disjunctively that it can- 
not be determined upon which of them the plead- 
er intends to rely as basis for recovery. Groover 
v. Savannah Bank & Trust Co., 186 Ga. 476, 198 
S.E. 217, 219. 

ALTERNATIVE RELIEF. The term "alterna- 
tive," as used in Equity Rule 25 (see Fed. Rules 
Civ.Proc. rule 8, 28 U.S.C.A.), allowing relief to be 
stated and sought in alternative forms, means 
mutually exclusive. Boyd v. New York & H. R. 
Co., D.C.N.Y., 220 F. 174, 179. 

ALTERNATIVE REMAINDERS. Remainders In 
which disposition of property is made in alterna- 
tive, one to take effect only in case the other does 
not, and in substitution of it. Riddle v. Killian, 
366 111. 294, 8 N.E.2d 629, 634. 

ALTERNATIVE REMEDY. Where a new reme- 
dy is created in addition to an existing one, they 
are called "alternative" if only one can be en- 
forced; but if both, "cumulative." 

ALTERNATIVE WRIT. A writ commanding the 
person against whom it is issued to do a specified 
thing, or show cause to the court why he should 
not be compelled to do it. Allee v. McCoy, 2 
Marv., Del., 465, 36 A. 359. Under the common- 
law practice, the first mandamus is an alternative 
writ; 3 Bla.Com. Ill; but in modern practice this 
writ is often dispensed with and its place is taken 
by a rule to show cause. See Mandamus. 

ALTERNIS VICIBUS. L. Lat. By alternate 
turns; at alternate times; alternately. Co.Litt. 
4a; Shep.Touch. 206. 

ALTERUM NON LIEDERE. Not to injure anoth- 
er. This maxim, and two others, honeste vivere, 
and suum cuique tribuere, (q. v.,) are considered 
by Justinian as fundamental principles upon 
which all the rules of law are based. Inst. 1, 1,3. 

ALTERUTER. Lat. One of two; either. 

ALTIUS NON TOLLENDI. In the civil law, a 
servitude due by the owner of a house, by which 
he is restrained from building beyond a certain 
height. Dig. 8, 2, 4; Sandars, Just. Inst. 119. 

ALTIUS TOLLENDI. In the civil law, a servi- 
tude which consists in the right, to him who is 
entitled to it, to build his house as high as he may 


think proper. In general, however, every one en- 
joys this privilege, unless he is restrained by some 
contrary title. Sandars, Just. Inst. 119. 

ALTO ET BASSO. High and low. This phrase 
is applied to an agreement made between two 
contending parties to submit all matters in dis- 
pute, alto et basso, to arbitration. Cowell. 

ALTUM MARE. L. Lat. In old English law, the 
high sea, or seas. Co.Litt. 260b. The deep sea. 
Super altum mare, on the high seas. Hob. 212b. 

ALUMNUS. A child which one has nursed; a 
foster-child. Dig. 40, 2, 14. 

Also a graduate from a school, college, or oth- 
er institution of learning. 

ALVEUS. The bed or channel through which the 
stream flows when it runs within its ordinary 
channel. Calvinus, Lex. 

Alveus derelictus, a deserted channel. Mackeld. 
Rom. Law, § 274. 

AMALGAMATION. Union of different races, or 
diverse elements, societies, or corporations, so as 
to form a homogeneous whole or new body; inter- 
fusion; intermarriage; consolidation; coales- 
cence; as, the amalgamation of stock. Stand. 
Diet. 

To join in a single body two or more associations, organ- 
izations, or corporations. Peterson v. Evans, 288 Ill.App. 
623, 6 N.E.2d 520. 

In England it is applied to the merger or consolidation 
of two incorporated companies or societies. 

The word has no definite meaning; it involves the blend- 
ing of two concerns into one; 1904, 2 Ch. 268. 

AMALPHITAN CODE OR TABLE. A collection 
of sea-laws, compiled about the end of the elev- 
enth century, by the people of Amalphi. 

It consists of the laws on maritime subjects, which were 
or had been in force in countries bordering on the Medi- 
terranean; and was for a long time received as authority 
in those countries. Azuni; Wharton. It became a part 
of the law of the sea; The Scotia, 14 Wall., U.S., 170, 20 
L.Ed. 822. See Code. 

AMANUENSIS. One who writes on behalf of 
another that which he dictates. 

AMBACTUS. A messenger; a servant sent about; 
one whose services his master hired out. Spel- 
man. 

AMBASCIATOR. A person sent about in the 
service of another; a person sent on a service, 
A word of frequent occurrence in the writers of 
the middle ages. Spelman. 

AMBASSADOR. In international law, a public 
officer, clothed with high diplomatic powers, com- 
missioned by a sovereign prince or state to trans- 
act the international business of his government 
at the court of the country to which he is sent. 

The commissioner who represents one country in the 
seat of government of another. He is a public minister, 
which, usually, a consul is not. Brown. A person sent by 
one sovereign to another, with authority, by letters of 
credence, to treat on affairs of state. Jacob. The personal 
representatives of the head of the state which sends them, 


104 



AMBULANCE 


entitled to special honors and special privileges and having 
varied duties; mouthpiece of communications, government 
informant, and protector of citizens of his country. Rus- 
sian Government v. Lehigh Valley R. Co., D.C.N.Y., 293 
F. 133. See Letter of Credence; Minister. 

A distinction was formerly made between Ambassadors 
Extraordinary, who were sent to conduct special business 
or to remain for an indeterminate period, and Ambassadors 
Ordinary, who were sent on permanent missions; but this 
distinction is no longer observed. 

AMBER, or AMBRA. In old English law, a meas- 
ure of four bushels. 

AMBEDEXTER. Skillful with both hands; one 
who plays on both sides. Applied anciently to an 
attorney who took pay from both sides, and sub- 
sequently to a juror guilty of the same offense. 
Cowell. 

AMBIGUA RESPONSIO CONTRA PROFEREN- 
TEM EST ACCIPIENDA. An ambiguous answer 
is to be taken against (is not to be construed in 
favor of) him who offers it. 10 Coke, 59. 

AMBIGUIS CASIBUS SEMPER PRLESUMITUR 
PRO REGE. In doubtful cases, the presumption 
always is in behalf of the crown. Lofft, Append. 
248. 

AltilBIGlUITAS. Lat. From ambiguus, doubtful, 
uncertain, obscure. Ambiguity; uncertainty of 
meaning. 

Ambiguitas latens, a latent ambiguity; ambigui- 
tas patens, a patent ambiguity. See Ambiguity. 

AMBIGUITAS CONTRA STIP 1 ULATOREM EST. 
Doubtful words will be construed most strongly 
against the party using them. 

AMBIGUITAS VERBORUM LATENS VERWICA- 
TIONE SUPPLETUR; NAM QUOD EX FACTO 
ORITUR AMBIGUUM VERIFICATIONE FACTI 
TOLLITUR. A latent ambiguity in the language 
may be removed by evidence; for whatever am- 
biguity arises from an extrinsic fact may be ex- 
plained by extrinsic evidence. Bac.Max.Reg. 23. 
Said to be "an unprofitable subtlety; inadequate 
and uninstructive." Prof. J. B. Thayer in 6 Harv. 
L. 417. 

AMBIGUITAS VERBORUM PATENS NULLA 
VERIFICATIONE EXCLUDITUR. A patent am- 
biguity cannot be cleared up by extrinsic evidence 
(or is never holpen by averment). Lofft, 249; 
Bacon, Max. 25. 

AMBIGUITY. Doubtfulness; doubleness of mean- 
ing. Chapman v. Metropolitan Life Ins. Co., 172 
S.C. 250, 173 S.E. 801, 803. Duplicity, indistinct- 
ness, or uncertainty of meaning of an expression 
used in a written instrument. Arkansas Amuse- 
ment Corporation v. Kempner, C.C.A.Ark., 57 F. 
2d 466, 472. Want of clearness or definiteness., 
difficult to comprehend or distinguish; of doubt- 
ful import. Business Men's Assur. Ass'n v. Read, 
Tex.Civ.App., 48 S.W.2d 678, 680. For "Extrinsic 
Ambiguity," see that title. 

Ambiguity of language is to be distinguished from unin- 
telligibility and inaccuracy, for words cannot be said to be 
ambiguous unless their signification seems doubtful and 


uncertain to persons of competent skill and knowledge to 
under6tand them. Story, Contr. 272. It does not include 
uncertainty arising from the use of peculiar words, or of 
common words in a peculiar sense. Wig. Wills, 174; In 
re Milliette's Estate, 206 N.Y.S. 342, 349, 123 Misc.Rep. 
745. It is latent where the language employed is clear and 
intelligible and suggests but a single meaning, but some 
extrinsic fact or extraneous evidence creates a necessity 
for interpretation or a choice among two or more possible 
meanings, as where a description apparently plain and 
unambiguous is shown to fit different pieces of property. 
Logue v. Von Almen, 379 111. 208, 40 N.E.2d 73, 82, 140 
A.L.R. 251. A patent ambiguity is that which appears on 
the face of the instrument, and arises from the defective, 
obscure, or insensible language used. Carter v. Holman, 
60 Mo. 50